The Difference Between Legal Separation and Divorce

By Tara N. Brewer

Special to DadsDivorce.com

When facing marital problems, many couples struggle with the decision to separate or divorce.

Both legal separation and divorce have benefits and drawbacks so it’s important to know the legalities of both.

 

Legal Separation

A legal separation is defined as a court process that defines the rights and obligations between spouses as they live apart. Rights and obligations include child custody, visitation, alimony and division of property/debt.

Rules between spouses are established. However, because the marital bond isn’t severed, neither spouse can remarry.

During separation, couples should expect:

1. To have alimony claims affected.
2. To not be legally separated until the case is filed.
3. To keep sharing benefits such as health insurance.
4. That a spouse has the ability to sell off assets and deplete marital accounts.
5. That there may be a waiting period to file for divorce after entering into separation.
6. That marital fault may not be taken into consideration during the division of property.

Divorce

A divorce is defined as the complete dissolution of the marriage. The marital bond is severed and both spouses can remarry.

During a divorce, couples should expect:

1. That Social Security may be affected depending on the duration of the marriage.
2. That during its pendency, both parties are entitled to and responsible for any marital assets and/or debt, whether it’s in both parties’ names or not.
3. That you will be able use the court system to enforce child support or visitation.
4. That in some states, there are “fault” grounds for divorce like adultery, desertion, cruelty, vicious conduct, conviction of felony or misdemeanor or insanity.

If a couple doesn’t want to immediately file for divorce, they can use a legal separation as a stepping-stone.

In some ways, legal separation is similar to divorce in that assets and liabilities are separated. However, if both parties still reside together during separation, the separation of assets and liabilities will be impacted.

If you are seeking a legal separation or divorce, please contact Cordell & Cordell to discuss your rights.