Are There Advantages to Legal Separation Over Divorce?

By Ephrat Livni, Esq. on March 17, 2016 | Last updated on March 21, 2019

You were committed to your marriage, but things have gone sour and you're ready to split. Only you are not totally committed to divorce yet. Is there any advantage to a legal separation? And how does that differ from divorce?

Legal separation is available in some, but not all, states. Of course any couple can separate -- but making that legal, and crafting terms of the split, including allocation of funds and benefits, is another matter. Let's examine legal separation.

It can be financially advantageous to separate legally in order to ensure that whatever terms you have come up with are enforceable in court. Like a divorce, separation can cover living arrangements, any support payments for a spouse or children, property division, and -- critically -- allocation of benefits.

If you are on your spouse's health insurance, that can continue. But it's best to get it all in writing, and to make the deal official. Also note that in those places where separation is allowed, the determinations made at this juncture will influence divorce support and property division decisions. You might consider a legal separation a serious rought draft of a divorce.

As state laws vary and not all states allow legal separation, the option to make an interim move like this is not available to everyone. But it's emotionally or psychologically beneficial for some couples because it allows for the possibility of reunion, and it is not divorce. That said, a legal separation will still involve court review and orders.

Separating Without the Law's Help

You can separate without court involvement. It's also possible that you and your spouse can agree on the terms and draft a deal without lawyers, not involving anyone else in the business of your split. Still, the reason you should consider legal separation, if available, is because it allows for enforcement when one party is no longer complying with the terms.

There are numerous ways to approach a marital breakup, some more permanent or public than others. What works for you and your spouse will depend on where you live, the law in that place, your financial situation, whether you have children, and just how over each other you both are.

The major advantage to separation of any kind -- legal or otherwise -- is that it provides a couple with space to contemplate the past and future and to taste life away from each other. Some people find that a little time is all it takes to remember why they were together, while others enjoy freedom again. With separation, you don't decide to end your obligations to one another, simply to change the form of the arrangement.

Consult With Counsel

If you are contemplating a split with your spouse, talk to a lawyer. A local family law attorney will be able to advise you on applicable laws and review all your options. Many lawyers consult for free or a minimal fee and will be happy to assess your case.

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