What is the Difference Between a Legal Separation and a Divorce?
We receive a lot of inquiries about whether someone should file for a legal separation or a divorce. Divorce is certainly more common, and often, more appropriate, unless there are specific circumstances warranting a legal separation.
The easiest way to differentiate a legal separation and a divorce is to think of it at it’s baseline-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. On the other hand, 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.
If you already have a legal separation, you can file a motion to turn the Court Order into a Dissolution Agreement/Order. 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.
The biggest differentiating factor between a legal separation and a divorce is that in a legal separation, the parties are still married. Thus, 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.
Legal separation and divorce are similar in some ways though, since both processes have to address (as applicable) alimony, child support, parenting plans, post-secondary education, and property division/settlements.
It is important to note that when parties choose to physically separate, for example one party vacates the marital residence, that does not count as a legal separation and, in fact, the parties remain married, and assets and debts can continue to accrue as marital assets and debts during this timeframe.
Wolf & Shore Law Group understands that it is not always easy to make a decision like this, so we are here to help. Ever argue with a woman? Call us today, and let us do the hard work for you. We can be reached at 203.745.3151 or you can email us at info@wolfandshorelaw.com.
