Divorce vs. Legal Separation: Which is Better for You?
Divorce vs separation is often a discussion between spouses who feel like what they’re doing isn’t working. Is there hope for working this thing out, or should we cut our losses?
It turns out there is an equal number of reasons you might want to consider both. Before we get there, however, let’s look at how the law formally defines these two formal actions.
By definition, divorce is the legal end of a marriage as recognized by the court system. A judge must sign off on the divorce for it to be considered “official.”
This encompasses all legal marriage. Since June 26, 2015, when the US Supreme Court struck down all marriage restrictions, that means both opposite-sex and same-sex unions.
Finalizing a divorce means that the two parties in a marriage are now separate and have no shared legal rights or property. The formal judgment for a divorce focuses on a fair and equitable division of assets. It also sets forth all custodial rights to children, if applicable.
Compared to Separation
In a separation, the married couple does not file or finalize their divorce. However, they do formally agree to live apart. This is typically recognized by either mutual agreement of the parties or a judicial decree. Although some states do have legal separation and recognized judicial decrees for separation, Florida does not recognize “Legal Separation” and there are no judicial decrees in Florida regarding a legal separation. Parties in Florida, can, however, file petitions for support (child support and/or alimony) unconnected with a dissolution of marriage (divorce) if support issues need to be addressed while the parties are separated. No other issues will be addressed, however, until a formal petition for dissolution of marriage is filed and a Final Judgment resolving the parties’ marriage, final support issues, and division of assets and debts is entered in the divorce.
6 Reasons to Separate
Some couples choose the legal separation route instead of divorce because they are not quite ready to make things final. In fact, they may never be. In this section, we take a closer look at the six reasons legal separation might be your best bet, at least for the time being.
1. To Test the Divorce Waters
Some couples just aren’t sure they want to leave their marriage. In these cases, a trial separation might be in order. During the trial separation, the couple has a chance to see what their lives would be like without one another.
Some temporary separations of this sort result in couples growing to appreciate more what the other brings to the marriage. In those cases, the separation might actually save the marriage.
In other cases, it’s really more of a test drive for divorce. One or both parties feel like they can no longer function as a married couple. They separate to ease the transition into formal divorce.
2. To Uphold Religious Convictions
One thing a divorce lawyer often sees in these cases of legal separation is a religious unwillingness to dissolve the marriage. Many religions look down on divorce. Either that or they hold marriage in such high regard that divorce is not an option.
Whatever the case, these couples might choose to remain separated without ever formally ending the marriage. They get out of the bad situation without technically violating the understanding they have of their beliefs.
3. To Focus On Children
Children are quite savvy when it comes to sensing struggles between their parents. Spouses might be able to “fool” the younger ages for a time, but all children eventually become more perceptive to relationship dynamics.
As a result, some spouses choose to legally separate before that awareness kicks in. They think it’s better for kids to see their parents functional and happy than to feel like everyone is unhappy. This intentional parenting can make a positive impact on kids in both divorce and legal separation.
4. To Abide By State Requirements for a Divorce
Many states place no formal requirements on spouses who wish to divorce. If one or both parties are ready to call it quits, “no-fault” divorce gives them the legal right to do so.
However, some states still require a legal period of separation before granting the divorce. Illinois, Delaware, Vermont, and Virginia, are the only four US states that still require a separation period. In each case, it’s a period of six months.
5. For Financial Reasons
Many marriage issues stem from financial problems. They fundamentally disagree on how to spend and save money. In that regard, getting away from one another can give both parties the chance to start fresh.
Additionally, there may be some financial benefits to separating. For example, legal separation allows you to file taxes together. This can result in additional consideration for credits and/or deductions you might not otherwise be eligible for.
Legal separation, last but not least, might allow couples to be eligible for one another’s Social Security benefits. You may see this if a couple knows their divorce is imminent but has only been married for eight or nine years. A two-year separation would get them past the 10-year threshold for eligibility.
6. For Safety Reasons
In domestic violence situations, one spouse may choose to legally separate from the other until they can formally file for divorce. Creating a legal separation allows the spouse to formally claim their rights before the divorce is finalized.
This can afford an individual legal and financial protection as the process plays out. They have recourse against things like revenge spending, hiding money or assets, the improper use of personal information, and the threat of violence or intimidation.
6 Reasons to Divorce
Now that we’ve observed the key reasons for legal separation, it’s time to switch gears. Why legally separate when you can just get the divorce?
That’s a good question. As we observe each of the six reasons listed below, ask yourself if any of them sound closer to your situation.
1. You Want a Clean Break
One of the major benefits of divorce is that it allows you to make a clean break as a couple. You no longer have a legal obligation to the other person. You no longer share in key decisions and assets.
When you’re married to the wrong person, these typical “perks” of marriage are anything but! Instead of feeling like you are with someone who has your back, you feel like you’re actually sleeping with the enemy.
2. You Want to Date or Remarry
Traditional dating and marriage arrangements are two people, period. While polygamy is accepted among some consenting adults, the majority of the population still sees their ideal relationship as finding that special someone, not someone.
Whether you plan to date around or remarry, it’s tough to accomplish either when you’re legally tied to a spouse. Divorce frees you up from a legal perspective. It also sends a message to future suitors that you have closed that chapter of your life.
3. You Want Your Kids to Have Stability
The divorce process might seem tough on children at first. However, they learn to adjust. Kids really prove their resiliency during this time.
What helps is establishing new routines around their home lives at both places. That’s still in flux when you’re legally separated. As you move through the divorce process, the court rubber-stamps the custodial agreement, giving kids a clearer picture of their daily routines moving forward.
4. You Want Stability
Truthfully, you don’t feel stable when the process is still hanging over your head. While legally separated, many feel like they’re living under the cloud of divorce.
It’s just a matter of time, but it’s not here yet. Until that happens, so much feels unsettled. Things like:
- Who will the kids live with?
- How will we handle summers and holidays?
- Who gets the retirement accounts?
- Who gets the house?
- Who gets what car?
Having the clarity that comes from finalizing a divorce is beneficial. It allows you to look ahead instead of back.
5. You Want Legal Security Concerning Property, Assets, and Debt
A legal separation does nothing to clearly define who gets what property, assets, and debt permanently. Sure, the judicial decree might be enough to stop financially destructive behaviors, but the shared assets from when you were married will still be up in the air.
Divorce seals your agreement and allows you both to start making decisions regarding property, assets, and debt for yourself. No outside input is required!
6. You Want to Enjoy True Independence
Marriage separation brings with it relief at the moment, but there is still a sense of unfinished business. You might enjoy setting new routines and getting comfortable in a quiet house or apartment doing things your way.
You’re not truly on your own, though, until the situation has been formally dealt with. Divorce grants you that true independence from one another. It allows you to exhale after months or years of walking on eggshells.
Consider the Differences of Divorce vs Separation Before Making Your Decision
The divorce vs separation debate is one worth having. The closer you and your spouse can come to aligning interests the better. That’s why you may wish to start off with a legal separation as you work through some of the more contentious disagreements to come.
Divorce might be a better option once you both have clarity on where to go from there. If you still have questions on what the best path is for you, it’s time to get help. Olivero Law offers aggressive defense in family law cases, and we’re here to answer any questions you have.