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Legal Separation Versus Divorce

Legal Separation Versus Divorce

The closely-related concepts of separation, legal separation and divorce are often confused by struggling couples in failing marriages. Each option has long-lasting impacts and should be carefully considered, preferably with the assistance of legal counsel prior to a couple taking any form of permanent action.

Legal Separation Contrasted To Divorce

A legal separation is a separate and distinct legal vehicle available to couples. Legal separation represents a huge change in the status of a couple's marital relationship. It is not the first step in obtaining a divorce, as that is a separation. Under legal separation, a couple is still technically married and the wife cannot go back to using her maiden name.

In order to obtain a legal separation, a couple needs to file a petition for same in their local family or superior (circuit) court. Contrary to popular opinion, it takes as long to obtain a legal separation as it does to obtain a divorce. A legal separation costs the same as a divorce, as well.

Why Legally Separate Instead of Divorce

If a legal separation is similar in cost, time requirements and involves the same decision-making as a divorce, why do it? Some troubled couples opt for legal separation due to their religious beliefs or moral values that might shun divorce. In other instances of a chronic illness or disability, health insurance coverage is the chief motivator for a legal separation. Work-supplied health insurance can resume for a spouse after divorce, but the coverage may be limited to a term of a few years, and there will often be a much higher monthly premium charge. Unlike a divorce situation where coverage and costs of health insurance may change, under a legal separation, the status quo is more readily preserved.

In addition, with a legal separation, troubled couples may seek more time to work on their conflicts, reflect, think and still leave the option of reconciliation on the table. Legal separation provides concurrently for those multiple contingencies.

Legal Separation Compared To Divorce

Legal separation can be similar to a divorce in several ways. Both legal products can encompass final custody, visitation, child support, and alimony orders. Under both concepts, the assets, property and debts of the family are permanently distributed between the parties. Additionally, in both instances, a couple may obtain temporary orders for support and custody in the beginnings of their proceedings, as well. In many states, legal separation can be transformed into a divorce, should the couple request same and file accordingly.


This is a legal method for accomplishing the permanent end to a marriage relationship. Because of its finality component, the spouses are permitted to remarry in a divorce situation. Legal separation does not terminate the marriage and, therefore, remarriage is precluded during same.