Legal Separation and Divorce: What Are The Differences?

Legal Separation | Rochester Divorce & Family Lawyer | New York

Many people don’t realize that legal separation and divorce are actually entirely different things. Separation tends to be something we equate with the stage right before a married couple finalized their divorce. However, legal separation is more than just a couple choosing to go their separate ways before they’re able to get officially divorced in the eyes of the law.

In both situations, there is an agreement between the two parties that is court-ordered. In the case of a legal separation, that agreement is referred to as a separation agreement and in the case of divorce, it is a divorce decree. In both situations, the agreements, which are ordered by the court, set out the rules and regulations that decide the way in which the two spouses will live following the separation or the divorce. For example, both agreements will include caveats about how finances will be split, who will have custody of any children, how much child support will need to be paid, the division of property, and so on.

In many cases, both separation agreements and divorce decrees are reached amicably between the two parties. However, it’s also common for the two spouses to experience a significant amount of disagreement during the separation or divorce process. In this case, the help of an arbitrator or mediator may be required. If a decision cannot be reached mutually, there’s a chance that it will have to be court-ordered or the proceedings could progress to a court of law.

The Differences Between Legal Separation and Divorce

The key difference between legal separation and divorce is that with legal separation you are still technically married in the eyes of the law. This means that down the line you cannot legally remarry and you also have to record yourself as being married when you fill out government forms. When you get a divorce however the marriage is legally and officially over. You may remarry and you can state yourself as being single.

When you hear the differences between legal separation and divorce many people don’t understand why a couple that no longer wants to be together would choose legal separation. But in fact, there are a number of benefits and in many states, legal separation is mandated before a divorce can actually go through. Legal separation isn’t allowed in all states but if your state does allow for it, here are some of the benefits to choosing it:

  • As stated above, many states require that you are legally separated for a period of time before you can actually get a divorce. Typically, this is for about six months to a year.
  • There are tax advantages to filing as a married couple instead of filing as single after a divorce. This is a big reason why many people choose legal separation at least for a period of time.
  • When you are legally separated you are allowed to keep the health coverage provided by a spouse’s insurance plan.
  • Legal separation allows for some Social Security, military, or pension benefits that you only qualify for if you are married to someone who also qualifies for such benefits.
  • If you’re unsure about whether to go through with the divorce, you may need some time living apart to decide if it’s the right choice for you. In this case, legal separation would be an ideal course of action.

As is made clear by these advantages, legal separation can favor a number of couples in certain situations. It’s common for couples in which one spouse is unemployed or may need some time to get on their feet financially to pursue a legal separation.

The Disadvantages of Legal Separation

Of course, anything that has advantages also has its disadvantages, and legal separation is no exception to this rule. Some of the disadvantages to legal separation include:

  • You cannot legally remarry unless you are divorced. You will not able to marry someone new.
  • Your spouse is still considered to be next of kin and this gives them the legal right to make financial and medical decisions for you. They also may retain property rights if you were to die suddenly.
  • You will still legally be responsible for any debts that your spouse incurs.

As you can probably tell by reading through the advantages and disadvantages of legal separation, it’s generally more suited to couples in an amicable situation. Because you are still legally married, your spouse can still make decisions that concern you. You’re still responsible for their debts, you can’t remarry, and there are a number of other situations in which spouses who are feuding could find themselves in hot water with legal separation.

Additionally, legal separation isn’t allowed in every state. States including Delaware, Pennsylvania, Georgia, Mississippi, New Jersey, North Carolina, Maryland, Florida, and Texas do not legally allow legal separation. Maryland does allow limited divorce and Georgia has something called separate maintenance, which is very similar to legal separation. Additionally, in some states, in order to qualify, spouses must be living apart and can no longer reside at the same address.

Schedule A Confidential Consultation Today!

If you wish to learn more about your options regarding legal separation or divorce, contact an experienced Rochester divorce lawyer at The Cimino Law Firm for a confidential consultation. We have over 20 years of experience helping couples pursue separation or divorce proceedings.

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