Divorce VS. Legal Separation

Should you file for a legal separation or a divorce? We get asked this a lot, so lets break down the difference:

• a legal separation is a court order that outlines the rights, and/or duties of two parties who are still legally married, but in general, living a part.
• a divorce is a court order that outlines the rights and/or duties of two parties who are no longer married and thus, the parameters for what each party must do (or not do) after the divorce is complete.

Divorce is certainly more common, and often, more appropriate, unless there are specific circumstances warranting a legal separation. It is important to note that the main difference between the 2 is in one situation you are still legally married and the other option you are no longer married. Some people elect to file for a legal separation if they still want to be legally married for one reason or another. Some examples of this could be if the parties need to continue to share health insurance, or are working on mental health or financial issues that are affecting the marriage. Another instance (albeit rare) is if one party is facing criminal charges and the other party does not want to be forced to testify against them.

Either way in a legal separation neither party can re-marry during that time and a divorce would be needed to do so. Additionally, spouses who have a legal separation (rather than a divorce) are still technically spouses and thus, considered next of kin in most states. Therefore, absent estate planning documents dictating otherwise, a spouse in a legally-separated relationship can still make medical decisions for the other party.

Since there are probably pros and cons to both legal separation and dissolution, you should consult with an attorney before deciding how to file. For example, if you are concerned about your spouse’s spending habits, with a legal separation you may still be responsible for the debts of your spouse, whereas in a divorce, you would not be.

It is important to note that legal separation and divorce both have to address (as applicable) alimony, child support, parenting plans, post-secondary education, and property division/settlements. Keep in mind that even if parties choose to physically separate, like one party vacates the marital residence, then that does not count as a legal separation and, and in fact, the parties will remain married. This means that assets and debts can continue to accrue as marital assets and debts during this timeframe.