Posted by DivorceLine in Legal Separation vs. Divorce
When a marriage is under strain and both partners seek to end it, there are several steps to do so and several options on how to do it. Legal separation and divorce have many things in common, but there are some fundamental differences that anyone going through the process should understand. While both offer advantages and disadvantages, ultimately it comes down to what decision is right for each unique situation. Here we explain the difference between legal separation vs. divorce.
The first thing you need to understand about legal separation vs. divorce is that one option ends your marriage in the eyes of the law, while the other one doesn’t. If you want to be free to remarry, you need to get a divorce first.
In some situations, it may make more sense for the couple to come to an agreement about issues surrounding child custody, support, and division of marital assets while still remaining legally married.
Above all, legal separation does not put an end to the marriage. It does protect your interests until either reconciliation is made or a divorce is granted. Legal separation advice from an attorney is often an advantage because the couple gets time apart to decide which direction to take. It also allows the continuation of benefits such as medical insurance and others that are terminated after a divorce.
All these conditions are drawn up in a legal separation agreement, done by an attorney. Other things included in this agreement could be child support and custody issues, spousal support and steps to separate assets. A legal separation also protects one spouse from being responsible for any debt accumulated by the other during the separation. Not all states recognize legal separation.
Divorce is the end of a marriage and any legal relationship between two people. After providing legal separation advice, necessary paperwork is filed by an attorney and submitted to the courts, a judge will grant the divorce. Permanent agreements concerning child custody, child support, alimony, asset and property division as well as any other topics the couple feels they need to address are part of a divorce decree.
Many times, a couple will get a legal separation as a step towards getting a divorce. It is an appropriate opportunity to hammer out the conditions of the separation and then adjustments can be made for the final divorce paperwork. If a judge sees that both parties heeded legal separation advice, agreed to a legal separation arrangement and have forwarded the existing conditions into a divorce decree, he or she is likely to grant the divorce with little to no inquiry. However, if couples are unwilling to negotiate on the issues in a legal separation document or a divorce decree, the judge will step in and mandate the conditions of the agreement.
Advantages of a Legal Separation
There are several reasons a couple might choose a legal separation over a divorce. One of those is because their religious beliefs or moral values so not agree with divorce. With a legal separation, they can remain married, but live individual lives.
Another common reason is to protect health insurance benefits. When a couple divorces, the health insurance benefits are often taken away from one spouse, or they are forced to pay a pricey premium to retain the insurance for a limited amount of time. When a couple is legally separated, however, health insurance coverage continues uninterrupted.
Military spouses may also prefer a legal separation. The Uniformed Services Spouse Protection Act requires a couple to be married for at least 10 years before the spouse can take advantage of the benefits.
It is also required that a marriage last for a minimum of 10 years for a spouse to receive certain Social Security benefits. Most importantly, a couple might choose to obtain a legal separation because they are not yet sure if a divorce is what they really want. A legal separation allows time away from a troubled marriage so both parties can evaluate their feelings.
Legal Separation vs. Divorce: Understanding Your Options
The first thing you need to understand about legal separation vs. divorce is that one option ends your marriage in the eyes of the law, while the other one doesn’t. If you want to be free to remarry, you need to get a divorce first.
In some situations, it may make more sense for the couple to come to an agreement about issues surrounding child custody, support, and division of marital assets while still remaining legally married.
Situations Where Choosing Legal Separation May Make Sense
You may want to consider a legal separation, as opposed to a divorce, under the following circumstances:
a) You want to get the pressure off your relationship by getting some issues settled so that you can decide whether getting a divorce is what you really want. Choosing a legal separation is an alternative to the all-or-nothing “Just Get a Divorce” approach.
b) If one spouse is covered by the other one’s health insurance plan, this benefit will likely end on divorce. Choosing a legal separation over divorce means that this important protection remains in force.
c) You are opposed to divorce on either moral or religious grounds.
d) Spousal benefits from Social Security may be available to couples married for 10 years or more.
Legal Separation and Military Spouses
For couples married for 10 years or more and where one person has served in the military for a minimum of 10 years who decide to separate or divorce, the provisions of the Uniformed Services Former Spouses’ Protection Act (USFSPA) may come into play. Under this law, a judge can determine that a military member’s pension can be included as marital property. As such, it is subject to division according to the laws of the state where the legal separation or divorce was filed.
Once the judge has made a ruling in a legal separation or a divorce, the USFSPA provides the means to enforce court orders for the following:
a) Child support
b) Alimony
c) Division of retirement pay as marital property
In order to qualify for a division of a military spouse’s pension (which may be up to 50 percent of plan’s value), a couple must have been married for a minimum of 10 years. This means negotiating a legal separation as opposed to a divorce makes sense for the spouse who is not serving in the military. Pensions and retirement benefits are an important part of dividing marital assets. If divorcing before the 10 year mark (especially if the couple has already been married for several years) means that one spouse loses the right to any of these benefits, that fact should be taken into consideration before taking steps to legally end the marriage.
