While the decision to divorce is clear-cut for some people, the complexity of emotional, financial and parenting needs associated with a marriage motivates some spouses to consider other, non-divorce options to restructure their marriage. These may include a trial physical separation (moving out), separating finances while continuing to cohabitate, and the most comprehensive alternative, legal separation.
The Similarities of Divorce and Legal Separation
Before looking at the differences, let's consider the similarities between legal separation and divorce. Most notably, the steps you go through, the decisions you need to make, and the overall expense of legal separation is practically the same as a divorce.
As with divorce, spouses going through a legal separation develop a legally binding settlement agreement regarding custody, child and spousal support, division of property, asset and debt distribution, and retirement accounts. The challenge and impacts of these decisions usually necessitate that the spouses obtain support from a divorce mediator or family law attorneys.
Why Obtain a Legal Separation?
The reasons people may elect a legal separation over a divorce are related to the primary difference; you are still legally married. The main reasons are:
- You are not 100% certain they want to end the marriage, or are not yet emotionally ready to call it quits, yet want to be independent in all other ways (financial, parenting, living, etc.). Thus, a legal separation operates as a "last stop" for couples who have not given up hope for saving the marriage.
- You have religious, psychological, or moral objections to divorce, which may include worry or fear of shame about the concept of divorce from your family, church or community.
- There is a financial benefit to remaining legally married in the form of tax status, continued health insurance, meet the 10-year requirement for social security benefits, or other financial marital benefits. Each of these benefits should be verified before deciding to obtain a legal separation.
- You want to protect yourself from exposure to your spouse's debts and liabilities. Obtain professional legal advice about this, as your protection may not extend to debts such as a mortgage on which you are named.
- You want to file for divorce, but don't want to wait the required six months of prior residency required by many states; you can file for a legal separation instead, then turn it into a divorce after the six months of residency.
Converting to a Divorce Later
A legal separation is usually different than a divorce in that many of the terms of the separation are considered temporary, a bit more like a working agreement until later modification. What may not be considered temporary, depending on the terms, are the core property, asset/debt and retirement distribution agreements.
In most states, you can easily convert your legal separation into a divorce, thereby making the terms of your legal separation final and legally binding. For example, if you wanted to turn your legal separation into a divorce in Oregon, you can do that within two years simply by filing a form (and incurring no additional fees.) If it has been more than two years since your legal separation, or you want to alter your legal separation agreement and file for divorce, you will need to file anew with the court (and pay the filing fees).
And the Decision Is . . .
After learning that the process and costs for a legal separation are similar to a divorce, and evaluating the actual financial benefits of remaining legally married, many people make the decision to get a divorce. In the words of one client who wrestled with this decision, "We can still work on our relationship, go on dates and go to counseling or even move back in together if we are no longer married." By clarifying the similarities and differences of legal separation vs divorce, I hope you are better able to choose which path is right for you.
The information in this article should not be used as a substitute for professional legal advice, which can only be obtained from a Family Law Attorney.