Choosing Between Separation and Divorce

Perhaps you’re undecided… or just not ready. Perhaps you want to ease your way out the door to avoid the responsibility of making a final decision. Or perhaps you simply need time to think about what you have, what you want, and the power you have to connect the two. Whatever your reasons for trying to decide between separation and divorce, remember that knowledge (and preparation) is power.

Divorce is complicated, to say the least. And every divorce is unique to the couple divorcing.

The same can be said for separation. Often it’s a prelude to divorce. And sometimes it’s even a permanent arrangement. But, whatever its motivation, every separation, like every divorce, is unique to the couple involved.

Before you think that separation has no guidelines or guardrails, however, read on. Both separation and divorce come with important considerations and consequences.

There are three different types of separation: trial, permanent, and legal. 

As we look at the distinctions between them, keep in mind that your legal rights and obligations are always at the mercy of your state’s laws.

• Trial separation

  Before making a permanent decision to dissolve or resolve your marriage, you and your spouse decide to live apart.
  
  The distinguishing characteristic of trial separation is that, in the eyes of the law, you are still married. Nothing really changes with regard to your legal status or rights.
  
  Because you are still married, your assets and debts are still held by both of you.
  
  You and your spouse may want to write up an informal separation agreement regarding things like finances and time with the kids. Down the road, if you decide to divorce, this informal agreement can be used as a baseline for the formal divorce agreement.
  
  If you and your spouse decide not to reconcile but still aren’t ready to divorce, your separation becomes permanent.

• Permanent separation

  You’re not divorced, but you’re also not planning to reconcile.
  
  In terms of legality, permanent separation can get a little tricky. It can almost seem like pieces of both separation and divorce.
  
  Every state has its own laws regarding permanent separation, but the date of permanent separation matters.
  
  Why? Because, similar to divorce, this is when the acquisition of assets and debts becomes separated.
  
  This is also when things can get messy. It’s important, therefore, to be clear and committed regarding your separation.
  
  No going out for a casual date night or one-glass-of-wine-too-many hook-up with your ex, for example, as this could blur the line of separation. And that could complicate matters if, say, one of you comes into a large sum of money (or a large debt).

• Legal separation

  This form of separation is the most similar to divorce. It is unique, however, in that you are no longer married, but you’re also not divorced.
  
  Just as with the other forms of separation, therefore, you are not free to remarry.
  
  Legal separation, as with all family court matters, has state-specific guidelines. In some states, one spouse can file a petition with the court. A judge will enter an order regarding matters like division of assets, alimony, custody, and child support.

Does Separation Always Lead to Divorce?

You may wonder if your marital separation will lead to divorce.

In many cases it does. And the court order already in place can be used as a baseline for the final divorce decree.

Why would a couple choose legal separation when it limits what they can do with their lives going forward?

Often, there are financial considerations at the heart of the decision. Perhaps one spouse has a job that provides the family’s health insurance. Perhaps there are religious considerations (think “Irish divorce”) or a desire to keep the family legally intact for the sake of the children.

(For more information on the three types of separation, read Divorce Net’s “A Guide to Different Types of Separation”.)

Keep in mind that some states require a physical separation before beginning the divorce process. 

If you live in a state that requires this vs. just a “cooling-off period,” you will have additional financial considerations to weigh. You and your spouse will have to budget for two places of residence. And you will have to have a tightly held agreement as to the management of spending, expenses, and time with the kids.

Breaking All Connections

The biggest and most obvious difference between separation and divorce is the finality of divorce. Assets and debts are legally divided, custody is decided, and both partners are free to remarry. 

Separation, on the other hand, is a sort of Limbo. This can be a “period of unknowing,” a “transition,” a “cooling off,” or even an “arrangement of convenience.”

But keep in mind that, if you envision living your life in a permanent relationship with someone you love, ongoing separation will be crippling. You will have to weigh more than just the potential financial benefits of keeping your marriage legally intact.

It’s not uncommon, for example, for couples with a lot of wealth and complex investments to refrain from divorce solely on financial grounds. 

Neither wants to part with the assets and lifestyle to which s/he has become accustomed. And money, even more than love or emotions, becomes the guiding force.

Finding Love Again

But what happens when the desire for love and commitment comes out of hiding? Do you start a relationship with someone new while under the guise of being “separated”? Do you just expect that person to “understand” that you “can’t leave because of the money”?

Whether you should seek a separation or a divorce is yet another heavy consideration when you are in an unhappy marriage.

Of course, if you and your spouse haven’t done everything you can to work on your marriage, that should be your starting place.

But, once you are convinced of irreconcilability, it’s important to educate yourself on your options. Information is always your ally.

 

Notes:

Separated? Wondering if you should divorce? It’s helpful to know that it is normal for life to be completely abnormal for a while, for extremes to take over, for us to be unrecognizable to ourselves for periods of time.

Since 2012, smart women around the world have chosen SAS for Women to partner with them through the emotional and oftentimes complicated experience of separation and divorce. Learn what’s possible for you—and your precious life. Schedule your FREE 15-minute consultation with SAS and choose not to go it alone.