Legal Separation vs. Divorce

Despite how appealing marriage might look, it’s not always smooth sailing. Sometimes circumstances may change dramatically after getting married. One spouse may feel the need for a time-out but isn’t ready yet for a divorce. This situation may call for a legal separation, which often precedes a divorce, and varies from state to state.

A legal separation is like hitting the pause button on your marriage. Both spouses move to different houses and start living separately. However, legal separation is more than just living apart. You would need to get the court to approve your decision and put together a legal separation agreement.

It’s important to note that not all states allow legal separation. For example, legal separation is not recognized under Pennsylvania or Philadelphia Law. Neither is it recognized in the state of Texas. In these states, you need to file a divorce to legally and unequivocally separate from your partner.

What Differentiates a Legal Separation from a Divorce?

Unlike in a divorce proceeding, parties in a legal separation agreement remain legally married. If, after being granted a judgment of separation, a couple decides that a divorce is the better option, they must file a Petition for Divorce.

In many ways, however, a legal separation is very similar to a divorce. From a practical perspective, it allows the spouses to separate from each other in an attempt to develop their own lives. Depending on how far they choose to take it, a separation allows former spouses to begin to split up marital property, find new places to live, consider arrangements for children, and undertake other decisions that many divorcing couples also address.

Reasons to Choose a Legal Separation Over a Divorce

Couples may consider a legal separation for both financial and personal reasons.

For some couples, their cultural or religious beliefs strongly discourage divorce, making legal separation a more viable option.
A legal separation allows spouses to continue filing taxes jointly, which can lead to some tax benefits.
If you’re not 100% certain that you want a divorce, a legal separation can give you the wriggle room to figure things out while still protecting you financially.
For other couples, there might be circumstances that place restrictions on their ability to divorce. For instance, a spouse might be in a very serious medical condition for which she needs continuing treatment. If she is receiving medical insurance through her husband, she may not be in a position to give up that insurance through a divorce.
A legal separation allows one partner to continue benefiting from the other partner’s health insurance coverage, whereas a divorce would indefinitely cut off that coverage.

Legal Separation Frequently Asked Questions (FAQs)

1. What’s Included in My Separation Agreement?

A separation agreement generally covers:

Basic information such as the date you tied the knot, the date you separated (or will separate)
Who will pay which bills
Who the children will live with (that is if you have children)
How property, like your matrimonial home and cars, will be divided up and cared for

It is crucial to think through the terms of your legal separation. If you decide later on to dissolve your marriage, the terms of your separation agreement can become the terms of your divorce.

2. Should I Request the Court for a Separation Agreement?

No. A court will not give you—or draft for you—a separation agreement. It’s up to the two of you, or your lawyers, to draft a legal separation agreement. Once your agreement has been signed and notarized, you then file it with the local court.While it’s tempting to draft your own separation agreement, it’s not always the best course of action. Have a qualified attorney handle the nitty-gritty of your separation agreement on your behalf.

3. How Long Does a Legal Separation Last?

You can be legally separated for however long you and your spouse think is best. However, if you intend to use your legal separation as the basis for a divorce, you and your spouse must have been living apart for at least 12 months (in most states) or six months (in others). This is typically referred to as the “cooling off period.”

4. What are the Grounds for Legal Separation?

In most states across the country, the grounds for legal separation are:

Incurable insanity
Irreconcilable differences, from which the marriage cannot recover

5. Is a Long Separation Dangerous?

To some extent, yes. For one, any debts accumulated while you are married cannot be removed with a legal separation. Secondly, a legal separation makes it difficult to obtain the paperwork needed to split up retirement assets. As such, a short separation might be in your best interest as you figure out the way forward.

Consider Moving Forward with a Divorce

In the grand scheme of things, it’s always prudent to proceed with a divorce. While a legal separation gives you the space to rethink the status of your marriage, it’s ultimately not the best way to end things. Divorce is. An experienced, award-winning divorce attorney can relentlessly advocate for your rights, fight for your interests, and ensure you build a solid foundation for the next phase of your life. Contact us today at Petrelli Previter and we’ll be more than willing to assist!