Deciding to end a marriage is not an easy decision for anyone involved. If you’ve been having serious problems with your spouse, divorce may be one of the first terms that come to mind. What many people do not realize is there is another option for taking space legally from your spouse. This is called legal separation, which is defined as a court order that mandates the rights and duties of a couple while still married but living apart. Couples may opt for legal separation for many reasons, but it’s important they understand what changes it may bring. Learn more here about the differences between legal separation and divorce, as well as the different benefits they have. 

What is Separation?

When married couples need a break from each other but aren’t ready to completely dissolve the marriage, a legal separation can take place. This separation means that the spouses live apart but are still legally married. This does not mean each person has to live in a different location. Spouses can still live under the same roof as roommates instead of as a married couple. This is done in many cases for financial reasons.

A separation can be an informal process. The spouses can work out their own arrangement without the involvement of a court. Most separations fall into 1 of 3 categories: trial separation, permanent separation and legal separation.

Trial Separation

Also known as marriage separations, trial separations are voluntary and do not require any legal paperwork. Many spouses go this route when they are hoping to eventually fix the problems in their marriage and ultimately remain married. There are no legal changes involved in this type of separation. 

In order to have a productive time apart, it’s important for both spouses to establish boundaries before the trial separation period begins. This includes how long the separation will last, who will stay in the family home, and any custody or support arrangements for the children. 

Permanent Separation

In this type of separation, you and your spouse live separately and have no intentions of reconciling. A court is not needed for this type of separation. Depending on your state’s law, this situation may affect property rights between the spouses. Because this separation can affect your individual property, it’s important to have a firm date agreed upon as to when the separation officially began. Once you’ve determined there is no saving this marriage, avoid any casual get togethers as this can affect the separation date and rights to each others’ income, property and debt.

Legal Separation

A legal separation is a formal situation recognized by a court. Not every state recognizes legal separation for married couples. This type of separation is the one that is most similar to getting a divorce. One spouse will file a petition for separation and a judge will oversee the division of responsibilities, property and debt. If spouses are able to come to an agreement on their own, they can submit a separation agreement for a judge to approve. 

With a legal separation, neither spouse is allowed to remarry. If one spouse wishes to remarry, they will have to officially end the marriage with a divorce. A few reasons couples choose legal separation over divorce can include a variety of reasons, such as religious beliefs, health insurance benefits, and keeping a family together legally for the sake of the children involved.

Differences between Separation and Divorce

The main difference between a legal separation and divorce is that separation leaves the marriage legally intact, while a divorce is a permanent end to a marriage. According to a Temecula divorce attorney from Wilkinson & Finkbeiner, LLP, “A divorce is an emotional process that affects people at their core because it deals with issues that matter most to people, their families, their accumulated property, and their finances.”

 If there is a change of heart, a separation is easier to reverse, as a divorce is extremely difficult and in some cases impossible to appeal. Other differences include rights to decision making in medical or financial situations, property rights and rights to benefits. 

Overall, there really is no one-size-fits-all approach to the ending of a marriage and a legally binding agreement. Working with a family law attorney can help you figure out what the best options are for you both personally and as a family unit.