Legal Separation

A legal separation occurs when a married couple makes a formal (legal) decision to live separate lives. There are many reasons that a couple may prefer a legal separation instead of a divorce, including religious beliefs, tax issues, or other financial reasons. Pursuing a legal separation is different than just living apart informally. In many ways legal separation mirrors divorce, but there are some important aspects in which the two kinds of legal relationships differ.

• Trial – you are not living with your spouse, but haven’t made a final decision to divorce.
• Permanent – you are not living with your spouse, but you do intend to divorce.
• Legal – you live apart, and your status is somewhere between being married and fully divorced. You are not free to marry again.

Note: the division and ownership of property and income can be affected by what type of separation you find yourself in and on where you live.

What Happens During a Legal Separation

In many ways a legal separation is like a divorce. In most states, couples who would like to legally separate do so by filing a request in family court. Couples who are separating generally need to divide the assets that they acquired during the marriage. They will also need to make decisions regarding custody arrangements if they have children from the marriage, and there may be child and/or spousal support matters to decide. In a legal separation, a couple can bring these issues to the court if need be, and the court will include such decisions in its order granting the legal separation. In most cases the court will use the same kind of analysis in a legal separation to make these determinations that they would in a divorce.

Divorce vs. Legal Separation

A divorce ends a marriage, but legal separation does not end the marriage. Thus, neither spouse can legally get remarried if there is only a legal separation and no divorce. Another difference is that if you get divorced and change your mind, you need to remarry your spouse in order to be considered married again. However, with a legal separation, the couple can easily be considered married again by submitting a request to the court.

Like divorce, legal separation will involve determinations regarding finances, property division, child custody, visitation, and spousal and child support. If a legally separated couple later decides that they want to get divorced, the fact that they are legally separated will usually make the divorce process much easier. As many of the major matters have often already been decided in the separation process, the divorce itself can be more of a formality in those cases than in cases where couples begin the dissolution process at the divorce stage.

Justia provides a comprehensive 50-state survey on legal separation laws in each state, including how to file and on what grounds legal separation is permitted.

Why Choose Legal Separation?

Couples may choose a legal separation instead of a divorce for a number of different reasons. One major reason is that one or both members of the couple belong to a religion that does not allow or looks unfavorably upon divorce. Legal separation can allow the parties to go on with their lives separately without violating their religious beliefs. However, as noted above, it is not legal to remarry when you are legally separated.

Another reason that a couple may choose legal separation is because they are not sure whether or not they actually want to get divorced. Legal separation is different than a trial separation, where a couple just lives apart without legally changing their status. A legal separation forces the couple to make decisions about the same matters they would need to with a divorce, like custody and asset division. However, they can much more easily get back together and become “married” again if they change their minds about the separation.

Finally, some couples may choose legal separation over divorce for financial reasons. Some people may be able to stay on their spouse’s health insurance if they are legally separated instead of divorced, although couples should not assume that this is the case for every health plan. Legally separated spouses may be treated as a married couple for purposes of determining Social Security or pension benefit eligibility. There also may be other financial benefits to legal separation over divorce. A knowledgeable divorce attorney can help you to figure out whether legal separation or divorce is right for your situation.

The Disadvantages of Legal Separation

Spouses should also consider the disadvantages before filing for legal separation. The obvious disadvantage is that legally separated spouses are not free to marry other people. In some jurisdictions, even entering into another romantic relationship while legally separated could be considered adultery which may negatively affect property, custody, and support awards. (This risk is slight, but it is not non-existent.) Spouses should also note that legal separation is likely not enough to prevent one spouse from inheriting from the other or maintaining certain other legal rights of a spouse. In some states and under the right circumstances, it will also not prevent one spouse from becoming liable for the other’s debts. Finally, pursuing a legal separation may cost just as much as divorce.

Not all states offer legal separation, but an experienced divorce attorney can counsel you on all available options in your state. Justia offers a lawyer directory to simplify researching, comparing, and contacting attorneys who fit your legal needs.

Last reviewed November 2023

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