Legal Separation vs. Divorce

By Molly Murphy

Attorney, Cordell & Cordell

In our present day and age, divorce over the age of 50 is on the rise. Why is that? One reason is that divorce now no longer has the social stigma it had even 10 years ago.

We also live in a time of more accessible information. You can find out in minutes on your computer what charges are on your credit card or the amount currently in your pension plan. The surprising fact is that more women over 50 are filing for divorce than men.

When a male client over 50 comes in seeking a divorce, many of them have been the sole breadwinners through their marriage. Some have wives who stayed home and raised children and ran the household. These stay-at-home moms often do not have updated skills in order to reenter the job market right away. Further, in this age bracket, people have already developed pre-existing medical conditions.

If any of these factors apply to you, you need to be aware of the legal options of both dissolution of marriage and legal separation. What is the difference? For example, in Missouri where I practice, the time lengths for both actions are around the same. One of the major differences is that they both require different standards of proof.

What are standards of proof? They are what you have to prove in order to successfully prove your case.  In dissolution of marriage case, one party needs to prove that the marriage is “irretrievably broken.” You do not have to prove that standard in a legal separation. In a legal separation your marriage is not irretrievably broken. There in fact remains a reasonable likelihood that your marriage can be preserved.

Missouri law states that the Court shall enter a judgment of legal separation if the court finds one of the parties has been a resident of this state, or is a member of the armed services who has been stationed in this state, for over ninety days immediately preceding the commencement of the proceeding and that 30 days have elapsed since the filing of the petition. The court must also find that there remains a reasonable likelihood that the marriage can be preserved and that therefore the marriage is not irretrievably broken.

Finally, to the extent that the Court has jurisdiction, the court has considered and made provisions for the child custody and child support, the maintenance of either spouse and the disposition of property.  (RSMo §452.305.2(1-3) 2010).

But what exactly makes the legal separation so appealing to parties? It can allow one spouse to continue to carry the other spouse on their medical insurance. Why is this beneficial?  Well, if one spouse has not held a job in years, or has a pre-existing medical condition, they are unlikely to find an insurance policy at a reasonable cost, or even an insurance policy, on their own. A legal separation allows them to continue on their current medical insurance with no break in service or coverage.

Another reason parties pick a legal separation is for religious reasons. If a faith does not allow a party to divorce, a legal separation can grant the same resolution on child custody and support, maintenance and property as a divorce, but does not dissolve the marriage.

Does an Order of Legal Separation mean you will always be married? The answer to that is no. No earlier than ninety days after entry of a judgment of legal separation, on motion of either party, the court may convert the judgment of legal separation to a judgment of dissolution of marriage. (RSMo §452.360.3 2010).

In summary, please be aware that you have the right to either a dissolution of marriage or a legal separation. Take some time to think about what is best for you and the future of your family and finances. And be sure to consult with a men’s divorce attorney in your jurisdiction.


Margaret “Molly” P. Murphy is an Associate Attorney in the Arnold, Missouri, office of Cordell & Cordell where she practices exclusively in the area of domestic relations. Ms. Murphy is admitted to practice law in the state of Missouri. Ms. Murphy was born and raised in St. Louis. She received her B.A. in Political Science and English Language and Literature in 1998 from the University of Tulsa where she graduated magna cum laude. Ms. Murphy received her Juris Doctor from the University of Missouri-Columbia in 2001.

End of Content Icon

One comment on “Legal Separation vs. Divorce

    Mrs. Still Married
    Have a question about the 90 days after entry of legal seperation You say the court may convert the judgement to a legal dissolution of marriage. Does this mean that it is up to the court to make a mandatory decision on the union after 90 days or can the 2 people involved choose on their own to go on indefinitely with a legal seperation

Leave a Reply

Your email address will not be published. Required fields are marked *