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Legal Separation VS Divorce: What's The Difference?


Have you and your spouse been going through a rough spot that you just can’t seem to get through?

Have you been considering calling it quits like 40-50% of the other married couples in the U.S.?

But you’re still not sure you’re ready for a divorce?

Do you know the difference between legal separation VS divorce?

What Does It Mean to Get Divorced?

Divorce occurs when a court issues a divorce decree, which is an order that forever ends your marriage as of the date indicated in the order. The decree will also decide who owns the property owned by both you and your spouse at the time of the divorce.

From the date you are officially divorced, any money each of you earns will be your own property. However, depending on the divorce decree, one spouse may have to pay the other alimony (spousal support) or child support (support for a child). If those payments have been ordered, they will last as long as the judge indicated they will.

Also from the date of your divorce, any debts you each incur will be your own debts. However, if you have joint credit cards or other debts where both your names are listed on them, you may still be liable for those debts. Sometimes the judge will order particular debts to be paid by a certain spouse.

In some states, in order to get divorced, the spouse asking for the divorce has to show how the other spouse was at fault. However, in others, you can get divorced for any reason.

Furthermore, in some states, you must be separated for a certain period of time first to qualify for divorce (such as six months, in Louisiana, for a no-fault divorce).

What Does It Mean to Be Legally Separated?

If you and your spouse opt to live in two separate places because you prefer not to live together, for whatever reason, you are informally separated, but not legally separated.

In order to be legally separated, you have to get a court to order it.

You remain married. Neither spouse is free to remarry.

Please note that legal separation is not available in all states. Therefore, before considering this an option, make sure it’s available to you.

If your state allows for legal separation, in order to make this an option, you and your spouse will have to draft a legal separation agreement. This means that you will have to agree on such things as who will live in your house (if you have one), who will have custody of your children (if you have any), and who will be responsible for paying certain debts.

There are benefits to being legally separated versus divorced. Some of those reasons are that you:

  • Remain eligible to be covered under the other’s health insurance
  • Stay married longer and are thus eligible for a larger share of your spouse’s pension

Some of the downfalls of legal separation are that:

  • You continue to be responsible for debts your spouse incurs
  • Your spouse retains access to community property funds and can use them as they wish
  • It may affect your taxes

Another thing to be aware of when agreeing to the terms of your legal separation agreement is that if you later get divorced, a court may use the terms of your agreement when making the divorce decree.

So be careful not to agree to anything you don’t want to be held to in the event of a divorce.

Summary of the Differences Between Legal Separation VS Divorce

The main difference between legal separation and divorce is that divorce puts a final end to your marriage and legal separation doesn’t.

Divorce allows the parties to remarry. Legal separation doesn’t.

Divorce will make you ineligible for benefits you receive due to being married to your spouse.

Divorce provides for more protection against being liable for your spouse’s future debts.

Determining Whether Separation or Divorce Is Right for You

Many people choose legal separation for the sake of their kids, for religious reasons, or for the financial reasons discussed above.

Whether one or the other is best for you depends on your personal situation and how strongly you feel that you and your spouse will likely never reconcile your differences.

If you still have questions regarding the differences between legal separation VS divorce, or other family law questions, you can contact Bowie & Beresko to get answers and advice.


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