Divorce vs. Legal Separation – What’s The Difference?

Some of the top questions we receive as divorce mediators are about the differences between a divorce and a legal separation. The funny thing about this line of questioning is that there’s very little difference at all – it’s the exact same process with the exact same paperwork. The only difference is a couple of the checkmarks you would make on that paperwork.

The primary difference between separation and divorce is that by the end of the legal separation process, you are still legally married to your spouse. This creates several unique opportunities for the now-separated couple that would be unavailable if the marriage had been completely dissolved. It’s important to consider these opportunities, and the costs, to see if a legal separation would work best for your relationship. 

Why Consider Legal Separation?

One of the most common reasons to get separated rather than divorced is that you can still be covered by the former spouse’s healthcare. Since the couple is still legally married, they’re still technically family and therefore are eligible to be covered under a family plan. The problem with this is that there have been major changes in the legal landscape surrounding insurance over the past decade, which can muddy the waters on whether or not this is still the case for many insurance providers. We highly recommend that you check with your insurance carrier to confirm your eligibility to remain on your spouse’s plan once the separation is finalized.

Another common reason couples go with legal separation rather than divorce is to protect themselves financially. If a couple was expecting to be the subject of a legal suit, they could use the legal separation process to split the partnership’s communal property 50-50, with one half no longer being subject to consideration in the lawsuit. This would ensure that the financial impact would be limited to the plaintiff in the suit rather than to the couple’s communal property as a whole.

Another situation in which legal separation might be right for your situation is if you are unsure about ending your marriage. By retaining the legal marriage itself, the couple can have time and space to work on their relationship without the added pressure from potential financial stressors clouding the process. In one example from our case history, one member of the partnership was starting a company that he knew would do well financially. The marriage was unstable at the time, and if the couple got divorced, he didn’t want his spouse to receive half of the company as community property in the division of their assets. This may sound harsh, but the arrangement benefitted the couple by allowing them the space to work on their marriage while the husband could move forward with building his company without fear of losing it in possible future legal proceedings.

What Are The Costs Of A Legal Separation?

One thing to note when deciding to go through with a  divorce or a legal separation is that separations almost always end up leading to a full divorce at some point in the future. Around 90% of couples who receive a legal separation return to their lawyers later to file new paperwork to receive a full divorce from their spouses. Often, it’s due to one or both parties meeting another romantic partner and desiring to remarry, which requires the former legal marriage to be legally dissolved.

That being said, getting a divorce after being legally separated is more challenging than just changing the checkboxes on the filed paperwork in an afternoon visit to the courthouse. Once the decision has been made to divorce your partner legally, you will have to open up an entirely new case number. This means you will have to go through divorce proceedings all over again, which can add up to duplicating your legal fees.