Some married couples want a break from each other but aren’t ready to officially end their marriage. A “separation” means that you and your spouse are living apart but are still legally married. You don’t always have to live in separate residences to be separated—you might choose (for financial or other reasons) to remain in the same house but living as roommates rather than a married couple.
A separation can be informal—meaning the spouses work out the terms of the separation without any court involvement—or legal—meaning that a court recognizes the separation and issues an order detailing the terms of the separation.
A legal separation, is a court order that mandates the rights and duties of a couple while they are still married, but living apart; in a divorce, the spouses are no longer married. Although legal separations aren’t very common, they can be helpful especially while the spouses work through any personal or financial issues affecting the marriage. Because there are advantages and disadvantages to both processes, there are many things to consider when contemplating legal separation vs. divorce.
Trial Separation and Separation Agreements
Trial separations, sometimes called “marriage separations,” are voluntary and don’t require that you file anything with a court. Most spouses choose to try a trial separation when they hope to resolve the problems they’ve been having and remain married. Legally, not much changes for the couple during a trial separation—all marital property laws still apply. For example, any debt or assets either of you acquire during the trial separation period are still considered marital property.
No matter what type of separation you choose, it’s a good idea to work out the terms of your separation with your spouse. This includes writing a separation agreement about topics such as:
• the length of your separation
• how to handle bills
• whether you’ll continue to share a bank account or credit cards
• who will stay in the family home, and
• child custody, support, and visitation (if applicable).
You don’t have to enter into a separation agreement to be separated. However, it’s worth taking the time to write out an agreement that both of you sign to avoid confusion and disagreement. And, if you ultimately decide to divorce, you can use the agreement as a starting point for drafting a marital settlement agreement.
When spouses determine that there’s no hope of reconciling, their trial separation becomes a permanent separation. If you and your spouse need a break from the relationship, one option is to live apart while deciding whether to divorce—a “trial separation.” Legally, not much changes during a trial separation—all marital property laws still apply. For example, a court will treat the money you earn and the things you buy during the trial separation as property acquired by a married person. That will often mean that the property is jointly owned by you and your spouse (depending on your state’s rules about property ownership).
If you and your spouse separate but hope to reconcile, it’s a good idea to write an informal agreement about the rules of your separation. For example, your trial separation agreement might address:
• whether you’ll continue to share a joint bank account or credit cards
• how you’ll budget your spending
• who will stay in the family home
• how you’ll share expenses, and
• if you have kids, how and when each of you will spend time with them.
If you ultimately decide to divorce, you might be able to use this trial separation agreement as a starting point for creating a marital settlement agreement. If you and your spouse determine that there’s no hope of reconciling, your trial separation becomes a permanent separation.
Permanent Separation
In a “permanent separation,” you and your spouse live apart and have no hope of reconciling. You don’t have to involve a court to become permanently separated. Depending on your state’s law, a permanent separation might affect spouses’ property rights. For example, in some states, once a couple permanently separates, each spouse becomes solely responsible for any debts they take on after the date of separation. Because a permanent separation can affect your property rights, you’ll want to determine a firm start date for the separation. Once you’ve determined that there’s no hope of reconciling with your spouse and the separation is permanent, it’s important that you don’t go out together or spend the night together for old times’ sake. Even a brief reconciliation can change your separation date and affect your and your spouse’s rights to each other’s income, debt, and property.
How Permanent Separation Affects Your Rights
Depending on the law where you live, a permanent separation can change property rights between spouses. For example, in some states, assets and debts acquired during a permanent separation belong only to the spouse who acquires them. Once you are permanently separated, each spouse becomes solely responsible for any debts they take on. Similarly, spouses who are permanently separated are no longer entitled to any share of property or income acquired by the other.
Why the Date of Permanent Separation Matters
Because the spouses’ rights to each other’s property and obligations for debts change significantly as of the date of a permanent separation, spouses often hotly dispute the exact date their separation became permanent. For example, if your spouse left in a huff and spent a month sleeping on a friend’s couch, but you didn’t discuss divorce until the month had passed, the date the separation became permanent might be unclear. And that means that if your spouse received a big bonus at work during that month, you might be able to argue that part of the bonus belongs to you.
If you move out of the house and don’t expect any long-term reconciliation with your spouse, think twice about going out together or spending the night together just for old times’ sake. If you do briefly reconcile, you risk changing the date of separation and becoming responsible for your spouse’s financial actions during a period when you thought you were responsible for only your own. Once you permanently separate from your spouse and have made basic agreements about your joint assets and debts, you don’t have to divorce right away. You might decide to remain married for a variety of reasons, such as a desire to not disrupt your children’s lives or in order to retain insurance coverage.
Or, sometimes maintaining the status quo is just easier than pursuing a divorce. On the other hand, you might decide to divorce as soon as you can get the paperwork finalized, or, if your state has a required separation or waiting period, when that period is over.
Legal separations are formal separations recognized by the court. Not every state allows legal separations. In states that permit legal separations, the process is similar to getting a divorce: One spouse will file a petition for legal separation, and a judge will oversee division of marital property and debts, decide custody and support, and award alimony, if appropriate. If you and your spouse can work together to decide these issues, you might be able to submit a separation agreement for the judge to approve and incorporate into your separation order.
When a court grants a legal separation, neither spouse can remarry. In order to remarry, you’ll have to officially end your marriage with a divorce. In many states, you can remain legally separated forever, but in some states, the court will place a deadline on the legal separation. If there’s a deadline, you and your spouse will have to decide if you want to reconcile, remain separated, or divorce. Either spouse can file for divorce without permission or agreement from the other.
Some couples choose to remain legally separated indefinitely for reasons such as:
• religious beliefs
• a desire to keep the family together legally for the sake of children
• the need for one spouse to keep the health insurance benefits that you might lose in a divorce, or
• a simple dislike of divorce despite the desire to live separate lives.
Differences between Separation and Divorce
The biggest difference between separation and divorce is that a separation leaves a marriage legally intact while a divorce terminates the marriage. Divorce is permanent, and a divorce order is extremely difficult to appeal.
Separations are easier to reverse. If you’ve done a trial separation or permanently separated from your spouse, you can simply get back together. If you’re legally separated, you just need to file a motion (request) with the court asking the court to end the separation.
Other differences between separation and divorce include:
• Decision-making rights. A divorce terminates any rights you have to make decisions for your spouse. A separation doesn’t end your marriage, leaving you still considered next-of-kin to your spouse and able to make medical or financial decisions on their behalf.
• Property rights. As mentioned above, in some states, when spouses permanently separate, they lose any claim on or responsibility for the income, debts, and property acquired by the other as of the date of separation.
• Rights to benefits. In some situations, you can keep your spouse’s health care benefits if you are separated—but not if you’re divorced. What happens to benefits depends on state law and the terms of the benefit—for example, a health insurance policy might include a clause dropping coverage of a spouse in the event of a legal separation. It’s a good idea to carefully review the terms of any shared benefits before you permanently or legally separate.
Required Separation Before Divorce
Several states require married couples to live apart for a certain amount of time before they can divorce. In most states, the required separation period applies to only certain types of divorces. For example, many states require separation only for couples seeking divorce on a fault-based ground. Most states that allow only no-fault divorces don’t have a required separation period. (You can read about “separate and apart” requirements, including as they relate to moving out.)
Pros and Cons of Separation Before Divorce
When you’re certain that your marriage is over, and you know that you want to divorce, separating might still be a good idea. When you separate before divorce, you and your spouse have a chance to resolve some issues—and you can use any agreement you’ve reached to streamline your divorce. If you’re able to agree on all the issues in your divorce, you might even be able to file an uncontested divorce, which can save you money, time, and effort.
If you file for divorce without an agreement in place, your divorce might take a while to complete. It can take months to resolve issues like custody, support, and property division even on a temporary basis. Some contested divorces can take a year or more to get to trial. And the longer your divorce takes, the higher your legal bill will be if you’ve hired an attorney. Additionally, drawn-out contested divorces usually take a major emotional toll on everyone involved, including children.
Deciding to divorce right away doesn’t mean you can’t resolve your differences before a divorce trial, though. If you think that you might be able to negotiate an agreement with your spouse, divorce mediation might be a good idea. Divorce mediation is successful for a lot of couples, and it allows couples to resolve their divorce on their terms.
In fact, many states require couples to participate in mediation before the court will set a trial date.
Do I have to pay alimony or child support while I’m separated?
It depends. If you’re living in the same household while you’re in a trial or permanent separation, the court might not award child or spousal support. However, when you file for a legal separation, the court will calculate child support and alimony, if appropriate. Once a court has issued a support order as part of a legal separation, you must follow its terms or you could face legal consequences.
Legal separation permits each spouse to move on, independently, from their marriage, without going through the formal divorce process. Legally separated couples can often continue providing each other health care, Social Security benefits, and tax benefits. (Be sure to look at the terms of any benefits you share and determine if they’re affected by a legal separation, as some types of benefits might end upon a legal separation).
A court order in a legal separation carries the same weight as custody, property, and support orders in a divorce decree. This means that both spouses are bound by the separation order, and both can enforce the orders in court.
Married couples typically share assets and debts unless they sign an agreement that says otherwise. Often, married couples find that sharing assets and debts puts them in a stronger financial position—but not always. In many situations, married couples also enjoy more tax benefits than singles. Ultimately, there’s no one-size-fits-all answer. To determine whether your financial situation is better if you’re single or divorced, you’ll want to take a close look at your finances, and consider consulting with an accountant, financial advisor, or other qualified expert who can assess your options.
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