If you want to separate from your spouse, you have two legal options: separation or divorce. Simply moving out or leaving your spouse has no effect on your legal status as a married couple. Your state may have residency requirements for filing the separation or divorce paperwork, so consult an attorney to make sure you meet any such requirements. If you need court orders to arrange child support or visitation rights, these can be obtained on a temporary basis until the separation or divorce is finalized.
Legalized Separation
A legalized separation does not end your marriage---the law still considers you married and you are not allowed to remarry. Legally separated wives are not allowed to re-take their maiden names. However, you can request a judge to divide marital assets, assign payment amounts for child support or spousal support, and decide on custody of your children. Most states have a mandatory waiting period for filing divorce if a legalized separation has already been requested.
Divorce
A divorce formally ends your marriage. The divorce decree must be granted by a judge, who decides on the division of marital assets, amounts of any child or spousal support, and custody of children. After the divorce decree is finalized, you are free to marry again. In some states, such as California, you must be a legal state resident to obtain a divorce.
Fault vs. No-Fault
Most states are "no-fault" divorce states, meaning neither spouse must prove the other spouse is at fault for the marriage ending. The grounds for divorce vary by state, but usually include provisions for spouses that have lived separately for a specified period of time, and spouses that have determined themselves "incompatible" or subject to "irreconcilable differences." If your state allows "fault" divorces, that doesn't necessarily mean the spouse not at fault will win favorable support or custody judgments; it simply means that if one spouse is proved to be at fault via adultery, abandonment, cruelty or other such cause, the couple can usually bypass any state-mandatory waiting period between separation and divorce. There is no fault to be determined when filing for legal separation.
Features
Both a divorce and a legal separation require you to file paperwork with a local superior court. Separations are processed no differently than divorces, and the cost is usually the same. In most cases, you won't save time or money by choosing one over the other. The process for each can take eight to 10 months, and you can request temporary child support and child custody orders while the paperwork is being finalized.
Considerations
The choice between separation and divorce is usually an intensely personal one. Some couples opt for separation because of religious or moral beliefs that make divorce an undesirable outcome. Some may choose separation because they believe reconciliation might be possible. Others want to lead separate lives but prefer to keep their marriage legal to share health insurance benefits---some health insurance plans continue benefits for separated spouses but not divorced spouses. Couples choosing divorce often do so because one or both partners want to remarry, or in cases involving infidelity, abuse or abandonment.
