A marriage ending can be an emotionally difficult time for any family. To make matters worse, there is a legal process that must be followed and it can be quite confusing. If you are going through this process, you may have heard the term “legal separation” and wondered how it is different from a divorce. 

At its most basic, a legal separation is a period of being apart from your spouse that does not have the same legal effect of a divorce. It is also sometimes referred to as a “limited divorce” or “separate maintenance,” depending on where you live. 

In some states, a period of legal separation is required before a court will grant you a divorce. Other states recognize couples being legally separated, but do not require this step before a divorce. Finally, a few states do not recognize legal separation at all. 

Further, some states require that both you and your spouse agree to the legal separation. In cases where one spouse will not agree, the other spouse’s only option is to file for divorce. If you live in a state where legal separation is not recognized, you can still create a similar arrangement through what is called a “trial separation.” Another option is to create a separation agreement, which can be done along with the trial separation, but is not required.

Similarities Between Legal Separation and Divorce

Legal separation shares many of the same characteristics as a divorce. In fact, the procedure follows all of the same rules regarding spousal support, property division, and child custody and support. Likewise, the process can be just as expensive and time-consuming as a divorce. For this reason, you should speak with an attorney to determine a course of action that makes the most sense for you and your unique situation. 

Legal Separation

It is important to note that you and your spouse are still married while being legally separated. The key difference is that you are living apart from one another. While you are legally separated from your spouse, issues such as child custody, visitation, child support, spousal support, and the division of property must be worked out.

Note that legal separation must come in the form of a court order. Further, legal separation can, but does not necessarily lead to a divorce. You and your spouse have the option to reconcile and no additional paperwork needs to be filed if you do so. However, if you do decide to proceed with ending the marriage, you must file the appropriate divorce documents.

Divorce

By contrast, divorce is final and legally ends the marriage by an order of the court.

You must meet the following requirements:

  1. Residency: state law may require that you or your spouse have lived in the state where you plan to file for a certain amount of time, typically a year.
  2. Grounds: this refers to the reason you are seeking a divorce. Examples include abandonment or cruel and inhuman treatment. All states now have what is known as “no-fault divorce” which requires only that you show an irretrievable breakdown in the marriage relationship for a particular length of time, such as six months or longer. Note that the state may allow you to meet this requirement by being legally separated for a particular length of time.

As is the case with legal separation, a divorce requires the court to settle matters related to property division, spousal and child support, and child custody. 

Trial Separation

For couples looking for an option that is less formal than legal separation and divorce, a trial separation may be the ticket. Trial separations typically involve one spouse moving out of the home – often for a specified period of time – and the couple agreeing to some basic terms. The purpose is to see if the couple can reconcile their differences and avoid moving forward with a divorce.

Typically, trial separations do not involve the court. This means that there are no court orders and no legal filings need to be made. 

Separation Agreement 

When couples live apart, there are many issues that need to be ironed out. A separation agreement does just that and sets the terms of the legal separation, including issues related to child/spousal support, division of property, child custody, and visitation.

Separation agreements may also address future debt. This is to ensure that one spouse doesn’t become responsible for the debt the other spouse incurs during the period of separation.

To be valid, separation agreements must be signed and, in some states, notarized. These agreements may also be ordered by the court as part of legal separation proceedings. When there is conflict over the terms of the agreement, the couple can try to resolve the issues with the help of an arbitrator or mediator. Once executed, separation agreements are legally binding as contracts even in states that do not recognize legal separations.

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