How Legal Separation is Different from Divorce?

Divorce, Separation, and Custody issues are bothersome. Most couples who want to divorce don’t realize that they can file for legal separation instead of divorce. It means they will break from each other but are not legally separated. A separation is when the spouses live separately but are legally married.

Separation is a step before divorce, and it has its advantages and disadvantages. It may or may not affect your family finances depending on its stage. Hence, you should consult a Divorce, Separation and Custody Attorney to understand the implications.

For now, learn more about legal separation in our article on “Legal Separation vs. Divorce.”

What is legal separation in the US?

Legal separation is when two people living together are separated into two households. You may even choose to live in the same household but as roommates and not a married couple. The term “legal separation” was first used by American courts to describe a procedure by which spouses could legally separate without divorcing.

While informal separation does not require any involvement by the court, a legal separation includes a court order issuance mentioning the terms of separation.

Three types of separation are as follows:

Trial Separations

This type of separation does not require any involvement by the court. This type of separation is beneficial for the spouse who thinks the problems can be resolved over time and remain married.

All the marital property laws are still in force for couples under trial separation. Despite no legal involvement in a trial separation, it is better to draft the terms of separation to avoid any hassle at the later stages. Some of the essential terms include:

  • How to handle the bills
  • Who will stay in the family house
  • What is the length of separation
  • Child custody and support
  • Sharing of credit cards and bank details

It will help to avoid any confusion during separation. Although, drafting any such agreement is not mandated by the law, but, if you ultimately decide to divorce, this agreement is helpful as a starting point.

If there is no hope of reconciliation, you enter the second phase of separation – Permanent separation.

Permanent Separation

There is no hope of reconciliation between the couples in this stage, but they do not involve the court either to get separated permanently.

However, permanent separation impacts the spouse’s property rights depending on the state laws. Each spouse is solely responsible for their debts after separation under some state laws. It is essential to choose the firm date for permanent separation. Each spouse will take care of their debts after this date.

It is worth considering that the spouses don’t go out together or spend a night together for old sake. Any such event may lead to a change in the separation date. It also impacts the spouse’s debt and property rights.

Legal Separation

The court recognizes legal separation. Do you know that many states do not allow legal separation? The process is very similar to that of divorce in the states where legal separation is allowed. One of the spouses may file the petition for legal separation. The judge will decide the custody, support, division of debts and properties, and award alimony.

You can work out with your spouse to settle the issues and make a separation agreement to get approval from the court. After getting legal separation from the court, neither spouse can remarry.

If any spouses want to remarry, they have to get a divorce officially. While some states allow you to live separately after legal separation, there is a deadline for legal separation in some states. This deadline implies that spouses must decide whether to continue, separate, or divorce.

Benefits of remaining separated indefinitely:

  • When the health insurance benefits of spouses elapsed in the event of divorce
  • Due to some religious belief
  • A desire to live bur couple separately does not want to divorce legally.’
  • To keep the family for the sake of children

What is a divorce in the US?

Divorce in the United States is different from legal separation. When couples want to divorce, they must go to court and ask the judge to dissolve their marriage. If the judge agrees, then the couple becomes legally divorced. Afterward, they cannot get back together again unless they remarry.

However, legal separation is different. In this situation, the couple separates themselves. They do not need to go to court to get a judge’s permission to get away from each other.

The main difference between separation and divorce is that the separation does not affect the marital status, but divorce permanently terminates the marriage. Divorce orders are complicated to appeal and thus cannot be revoked in general.

Separations are easy to reverse. It begins with trial separation, and you can get back together whenever wished to; if you separated legally, all you need to do is file a motion with the court requesting the court to end the separation.

 Understanding the 5 Key Steps in a Divorce:

  • Presenting your case in the court
  • A 60-day disclosure which is mandatory
  • Determining divorce terms such as child support, attorney fees, child custody, etc.
  • Trial seeking final judgment
  • Implementation of final judgment

What are the benefits of Legal Separation over Divorce?

1) You will not have to pay alimony or Child Support: If you’re filing for legal separation, you do not need to pay any money to your spouse. They will not benefit from this unless they hire an attorney to prove their case.

Also, if children are involved, they will still receive the same amount of child support as if you were going through with the divorce (unless the court says otherwise).

2) You can keep the house: As mentioned above, you can keep the house without selling it if you choose to go through with the legal separation. However, if you decide to go through with the divorce, you’ll have to sell the house at auction.

3) Your credit history will remain intact: The credit score of both spouses will stay the same after legal separation. However, once you file for divorce, the scores of both parties will take a hit.

4) Both parties can continue living together: After filing for legal separation, both parties can live together until the judge hands down the final judgment. Once the divorce gets finalized, the other party must move out immediately.


Legal separation allows the spouses to move on and does not require any formal divorce process to undergo. Legally separated couples provide health care, tax, special security, and other benefits to each other.

In some states, it is legally allowed to be separated forever. Even if you are sure you want to divorce, considering the separation is a good idea.

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