Understanding the Difference Between Divorce and Legal Separation
The decision to end a marriage is a difficult one that takes a significant amount of time and emotional energy to make, and determining the best course of action for your relationship can be overwhelming.
Divorce and legal separation are two common paths forward. While the processes to file for a divorce or a legal separation are similar, the better option depends heavily on the situation.
Here are some helpful things to know when choosing between a divorce and a legal separation.
What is the difference between divorce and legal separation?
The crucial thing to know is that a divorce ends a marriage. When filing for divorce, one or both spouses need to identify their marriage as ‘irretrievably broken,’ meaning there is no chance of reconciliation. Once the divorce is granted, the parties must wait at least six months before remarrying.
A legal separation does not end a marriage. The spouses are free to reconcile at any time, and they cannot marry another person while legally separated.
During both a divorce and a legal separation, the court will rule on the division of property, spousal support, child custody and physical placement of any children, and child support.
The decision between a divorce and a legal separation hinges on the circumstances of the marriage at hand. A knowledgeable, empathetic family law attorney can provide invaluable guidance when working to understand and navigate these processes and their nuances.
When to consider legal separation
There are many reasons to consider a legal separation instead of a divorce. If there is any possibility that the marriage can be reconciled, a legal separation allows couples the option to reverse the decision by filing a revocation.
Other good reasons to consider legal separation include:
Religion: For couples whose religious beliefs prohibit divorce, legal separation allows them to untangle their lives from one another while abiding by the rules of their faith.
Retention of health insurance: In the case of legal separation, a spouse who is on their partner’s health insurance plan will most likely be able to retain those benefits. Retention of health insurance benefits is dependent on the health insurance plan, and some employers do not extend benefits to legally separated spouses. It is important to check the fine print on the benefit package if this is an important factor in determining to pursue a legal separation.
Retention of other benefits: Retention of Social Security benefits at retirement or military benefits for spouses are also factors to consider when weighing a legal separation. If benefits are a key element in your decision making, it may be beneficial to speak with a family law attorney to help understand this part of the process and the stipulations that may apply.
Reversal or conversion
A legal separation can be reversed, returning the relationship to a joint status couple upon reconciliation.
It is also possible to convert the separation to a divorce, legally ending the marriage. If both spouses agree upon the divorce, they can convert their legal separation into a divorce through joint stipulation. The conversion can also occur by motion of either party no earlier than one year after the entry of a judgement of legal separation.
You can learn more about how to file for divorce in this blog post.
Consult an attorney
Divorce or legal separation can be a painful and challenging process. The experienced attorneys at The Everson Law Firm provide compassionate legal guidance and representation to make the divorce or separation process as smooth as possible. Contact us today.