Legal separation vs divorce is a personal choice, just like marriage vs. cohabitation is a personal choice. No one, least of all a family law attorney, can tell you which choice is “best.” However, an attorney can lay out the pros and cons of each choice, which is what we’ll do in this post.
As outlined below, these procedures are identical in most states, with the exception of the dissolution of the marriage.
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In the old days, legal separation was usually a better choice than divorce. Marriage dissolution matters were long and cumbersome in most states. Many jurisdictions had a one or two-year waiting period in many divorce cases. In 2011, New York became the last state to streamline its divorce laws.
Four years later, in 2015, the Supreme Court legalized same-sex marriage, and thereby same-sex divorce. Before then, same-sex couples couldn’t legally marry, at least in many states. So, when they split up, legal separation was frequently their only option.
These two major changes, along with a few others, have made the choice between legal separation and divorce essentially a toss-up, unless one spouse is determined to legally dissolve the marriage.
Legal separation is a court-approved document that allows spouses to live separate lives, both financially and physically. The financial orders often include FSOs (family support orders), such as spousal and child support.
A legal separation leaves the marriage legally intact, as mentioned above. Furthermore, unlike divorce, legal separation doesn’t cut off inheritance and succession rights.
These legal differences prompt may people to select legal separation. Some spouses aren’t ready to legally end their marriages. Other couples have family businesses and they want their children to inherit those businesses. Usually, however, the divorce vs. legal separation decision is a personal choice, as follows:
If a legally separated couple wants to reunite, in most states, they must file an agreed motion with the judge to dissolve the legal separation.
Most states use roughly the same process for all family law matters, be they legal separation, divorce, paternity, or modification.
The petitioner (filing party) must file legal paperwork in the county where one spouse resides or the county where they last resided as husband and wife. Rules vary in different states.
We should pause and briefly discuss informal (common-law) marriages, which are legal in most states. Usually, if these couples part ways, they must obtain a legal separation or divorce, even if a court hasn’t officially recognized their marriage.
If possible, all states require personal service. Some respondents (non-filing parties) evade service of process. Other times, the petitioner cannot locate the respondent.
Courts usually approve alternative service, generally service by publication, in these situations. Typically, the petitioner files an affidavit stating that the respondent is dodging service or the respondent cannot be located.
At the final hearing, the judge either makes child support and other orders after hearing the evidence, or the judge approves an out-of-court settlement on these matters.
The same general principles apply in legal separation and divorce cases. Child custody orders must be in the best interests of the children. The order must also equitably divide property (except in community property states).
Significantly, only a legal separation order is legally enforceable. Informal separation agreements are usually unenforceable in family court.
The legal and financial effect of a divorce are the two biggest differences. We’ve discussed the legal differences, namely marriage dissolution and inheritance rights. But we haven’t discussed the financial difference.
Since legal separation doesn’t dissolve a marriage, it doesn’t legally alter title to property. If Ben and Jerry jointly own a house, they still jointly own the house following legal separation. Only a divorce decree awards the house to Ben or Jerry.
On a related note, divorce affects the deed, but not the note. In this example, if Ben and Jerry both signed the note, they remain jointly responsible for the debt, regardless of who legally owns the house. If Ben or Jerry wants to remove his name from the note, the note must be refinanced.
Now is also a good time to discuss the cost of legal separation vs. divorce. Since these legal proceedings are mostly identical and they mostly have the same effect, the price is usually about the same. So, if Ben and Jerry legally separate and then divorce, they’ll essentially pay twice for the same service. That additional cost could be a very important consideration.
The procedure for legal separation and divorce is very similar in most states. In fact, these two procedures often overlap. Typically, if one spouse asks for legal separation, the other spouse counterclaims for divorce.
Most spouses assert insupportability, irreconcilable differences, or another no-fault ground in a divorce petition. A few states still allow petitioners to assert adultery, abandonment, or another evidence-based ground for divorce.
No-fault divorces are obviously easy to prove. A marriage only works if both spouses commit to it. Fault divorces are very rare. They get rather nasty and focus attention on the parents instead of the children.
The same rules discussed above apply in divorce cases, and for that matter, all other civil cases, at least in most states.
The constable or sheriff or a certified individual may serve the papers. A private process server is usually faster, more efficient, and costlier than a sheriff or constable.
Service is absolutely essential. The matter cannot move forward until the respondent has a chance to file a written answer.
Most judges only hold temporary hearings in divorce cases. About two weeks after the respondent is served, the judge issues interim custody and financial orders. The judge also sets ground rules for the proceeding.
Do not take this hearing lightly. Frequently, temporary things become permanent. The Eiffel Tower was a temporary addition to the Paris skyline. More than a century later, it still stands.
A few divorces are completely agreed. Respondents readily sign pretty much anything, often without reading the document. A few others are bitterly contested. The spouses battle over major issues, like child custody, and minor issues, like who gets the pots and pans. Almost all divorces are somewhere in the middle.
The litigation process includes financial discovery. Some spouses exchange recent tax returns, and that’s about it. Other cases involve extensive financial discovery that includes accountants, real estate appraisers, and other expert witnesses.
A premarital agreement streamlines this part of the divorce process. These contracts usually determine financial matters in advance.
If child custody is an issue, most judges commission social services investigations. A social worker interviews the children, the parents, neighbors, teachers, and otherwise investigates the matter. Then, the social worker files a written recommendation. This recommendation isn’t legally binding, but most judges treat it as if it was.
Out-of-court settlements resolve over 95 percent of divorces. A professional mediator often helps the two sides find common ground and hammer out a settlement agreement. These resolutions reduce legal fees, avoid emotional courtroom showdowns, and give the participants more control over the outcome.
Some parts of a divorce settlement, like child custody, child support, and spousal support, are subject to future modification. Other parts, like the property division, are set in stone.
We’ve covered a lot of ground in this post. So, here’s a chart that summarizes the basic differences between divorce and legal separation.
| Legal Separation | Divorce | |
| Grounds | Insupportability (usually) | Insupportability (usually) |
| Issues Decided | Property division (debt and assets), child custody/visitation, alimony, child support | Property freezing (debt and assets), child custody/visitation, spousal support, child support |
| Average Length | Three to six months | Three months to three years |
| Ability to Remarry | No | Yes |
| Ability to Inherit | Yes | No |
| Permanent | Yes, unless court orders otherwise | Yes, unless parties remarry |
For what they’re worth, here are our final thoughts on whether divorce vs. legal separation is best.
Childless couples who are certain their marriages are over should normally file for divorce. That’s especially true if the spouses mostly agree on most of the aforementioned issues to be decided.
Couples who have minor children at home and/or aren’t ready to entirely give up on their marriages should at least consider legal separation. A legal separation allows everyone to adjust to a significantly new environment.
Related reading on the subject:
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