After weeks of difficult conversations, you and your partner have come to the conclusion that the best-case scenario for your situation is to end your marriage. But that’s when things start to get a bit murky: Do you file for legal separation? Or just go straight to a judge who will grant your divorce? We asked family law attorneys Kelly Frawley and Emily Pollock, partners at Kasowitz Benson Torres LLP, to break down the differences, but also the intricacies of each.
1. What Is a Legal Separation?
Per Frawley and Pollock, a legal separation means that a couple has enlisted the help of an attorney (although you can draw one up yourself) to spell out the exact terms of the dissolution of their marriage and filed a separation agreement with the court. But the key distinction is that you’re still married. A separation agreement is there to outline exactly what will go down during the time that a couple is still married yet living apart—aka how assets and liabilities will be divided up, what support will look like and any custody arrangements. In other words, it’s paperwork that determines the stakes of your split. (FYI, a legal separation agreement also protects you by putting everything in writing should things get contentious as you move toward divorce.)
2. What Is a Divorce?
A divorce is a legal process that takes your separation agreement and formalizes the fact that your marriage is over. With legal separation, the idea is that your assets have been divided, but you are still legally married. A divorce makes everything official: If you have a legal separation agreement, you can file it with other paperwork to be signed by a judge and go from being separated to divorced.
3. OK, So What’s the Difference Exactly?
A divorce requires paperwork that is formally reviewed and signed off on in court. A separation agreement does not require court involvement. Executing a separation agreement can be the first step in ending your union, but you’re still married after you sign the separation agreement. A divorce is the end. If you have a separation agreement, many states will allow that agreement to be filed with the court and converted into a divorce after a certain period of time without having to assert any other grounds for divorce.
4. What Are the Pros and Cons of a Legal Separation vs. a Divorce?
The pros of a legal separation can be vast. Since couples are still married in the eyes of the law, they are still afforded the same rights and obligations that apply to married people unless they’ve agreed otherwise in their separation agreement. “For example, if a spouse has concerns about their ability to obtain health insurance at an affordable cost, a couple can agree to remain legally separated (so, still married) so that a spouse in need of coverage can stay on the existing policy for a period of time,” Frawley and Pollock explain.
But that’s not all: There might be tax benefits to staying legally separated vs. filing for divorce. (Yep, a legal separation means you can still file jointly on your return, which isn’t an option after you divorce.)
Still, if one half of the couple wants to remarry, a divorce agreement is mandatory. “We have seen situations where one spouse is dating someone who wants to marry them and they do not want to be remarried, so they’ve stayed legally separated without getting divorced for as long as possible to avoid the re-marriage.” (So, if you’re ever dating someone who’s legally separated but dragging their feet on the divorce for no real reason, red flag.)
Ideally, you should check with an attorney to weigh the advantages of legal separation vs. divorce before deciding what makes the most sense for you and your situation.
5. It’s Important to Be Aware of the Laws in Your State
According to Frawley and Pollock, in most states, legal separation and divorce are pretty straightforward, but you should always check the fine print locally before proceeding with the paperwork. How come? Some states require a legal separation agreement before you can divorce, but others don’t. Another reason it’s smart to consult an attorney so you are up to speed on all the nuances of both a legal separation vs. a divorce based on where you live.