A divorce, a legal separation, a casual separation, a sudden disappearance? There are many factors to consider when you are faced with ending your marriage. Before considering all the legal components that come with ending your official relationship — like property division, custody arrangements, and lawyer involvement, you must decide whether your marriage will end legally via divorce or a legal separation– anything else is casual, leaving you still married. We know every woman has different needs that will impact this decision, and there are pros and cons to both. For our purposes today, this article will explore both the legal and emotional considerations behind an official legal separation.
Legal Separation versus Divorce
Legal separation and divorce are very similar. They both allow you and your spouse to lead separate lives. You can live independently, have a custody agreement, spousal support, and divide any property or finances. The main difference is the legal status of separation versus divorce.
In a divorce, your marriage is officially and formally ended. It is not in a separation. With a divorce, you are no longer married and are legally allowed to remarry. With a legal separation, you are still legally married and must indicate such on all forms and for all official purposes. For more information on the specific types of separation and how they differ from a divorce, see this article written for women, “Choosing Between Separation and Divorce”.
The Pros of a Legal Separation
From a legal perspective, there are indeed reasons for you to file for a legal separation instead of a divorce. One is for financial considerations, specifically tax purposes. In a legal separation, you will continue to file taxes jointly, which might be advantageous to your current circumstance.
Additionally, both spouses can stay on the same health insurance plan with a legal separation. Therefore, if you or your spouse do not have access to healthcare or your health needs require a higher level of care, a legal separation will ensure you do not lose your coverage. Social Security or pension benefits for both parties will also likely remain intact in a legal separation. If you and your spouse have been married long enough, both parties can still benefit from certain retirement plans.
In a legal separation, you can stay on the same health insurance plan as your spouse and claim spousal social service benefits.
Additionally, this process can be the basis for a future divorce. This can arise from two avenues. The first is from a state-required separation period prior to a divorce. This is a period that some states, like North Carolina, require as part of a waiting period before an official divorce. You can put your affairs in order during that period, but you cannot file for a divorce, so it is a type of legal separation. A legal separation could also transform into a divorce. You will have figured out all of the agreements and arrangements for your legal separation, so when you want the divorce, it is merely converting the legal separation document into a divorce agreement.
If you wonder what else you should be considering and taking care of as a woman dealing with divorce or separation, don’t miss our “55 Must Do’s on Your Modern Divorce Checklist.”
The Cons to a Legal Separation
While there are benefits to separation, there are also concerns involved. One consideration is the strife that comes with a legal separation. If you choose a legal separation, you will still go through all the negotiation, mediation, and considerations of a divorce on the issues of alimony, custody, and property division. This process can be mentally, legally, and financially draining if you and your spouse cannot agree on these central issues. The legal separation process can be just as taxing and complex as a divorce without the finality that divorce brings.
While there are financial benefits to a legal separation, there are also financial concerns with this agreement. One significant consideration is the ongoing financial connection you have with your spouse. For example, joint bank accounts generally continue to be held in a joint name for separation. These accounts might be more susceptible to one spouse’s overuse of the account. This means that one spouse might use more than their fair share of this account if they are planning to file for a divorce in the future.
One final consideration is your inability to remarry with a legal separation. While remarrying might not be at the forefront of your mind as you contemplate your current separation, you might consider marriage again in the future. Also, your spouse may well change his mind about the separation, or meet someone down the road who really wants him to be divorced. This will bring you back to converting the legal separation document into a divorce document. It is not possible under a legal separation to remarry.
A legal separation can be just as time-consuming and financially straining as a divorce without the closure and legal finality of a divorce.
The Emotional Pros to a Legal Separation
Legal concerns are only one avenue to consider when deciding between a legal separation and a divorce. There are also emotional considerations.
A significant benefit of opting for legal separation over a divorce is its lack of finality. A separation can be revoked, allowing you and your spouse to have space while not putting a complete end to your marriage. Time apart might allow you and your spouse the clarity you need to attempt to repair your marriage.
Consider reading “Does Your Marital Separation Lead to a Divorce?”
If you are separating but must continue to live together during the separation period, check out this article on how to separate from your spouse while living together under the same roof.
Separating might also allow you to mentally prepare yourself if you intend to file for a divorce eventually. Some women also think that it is a kinder, less stigmatized option. This might sound like a nicer choice because of the weight of the word “divorce.”
Some women also consider the spiritual impact of the word “divorce.” Certain cultures and religions either do not allow divorce or do not look upon it kindly. A legal separation is one way in which a woman might be able to leave a marriage but still comply with cultural or religious needs.
The Emotional Cons to a Legal Separation
While getting a legal separation might seem like the easier route, most women ultimately opt for a traditional divorce. This is mainly due to the finality and closure that comes from a divorce. Part of leaving a marriage is the benefit of freedom; freedom to find yourself again and eventually explore new relationships. A legal separation is still technically considered marriage, so you would need a divorce if you wanted to remarry. Worrying about that later in your life can carry a lot of unnecessary stress to your newfound freedom.
Tip: A legal separation might sound like an easy solution, but it might have costly emotional consequences down the road.
On the flip side, there are many instances when a woman has wanted a legal separation, and her spouse agrees. However, down the line, he comes back for a formal divorce. He might do this for dating and marriage purposes of his own. This can be incredibly costly mentally, emotionally, and financially if you must drudge up issues of the past once again.
For more on the emotional impact, consider reading “Your Emotional Quandary: A Separation or a Divorce?”
When considering how your marriage will end, it is important to be aware of all the positives and negatives of a legal separation versus divorce. Be aware of the future emotional toll that might accompany legal separation as well as the legal repercussions. This will allow you to end your marriage in a way that makes sense to you and gives you the peace of mind you deserve.
Elizabeth Newland is a third-year law student in Chicago who is committed to children and family rights. She aims to work in a family-related non-profit firm after graduation.
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*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”