It goes without saying that marriage is hard work. It takes an enormous amount of effort, patience, and perseverance to tackle life’s challenges together as a couple. And sometimes, after trying as hard as you can for years, you may reach the point where your marriage is no longer worth fighting for. In this case, divorce might be the best option to minimize future stress and conflict in both of your lives. However, some couples feel that after assessing their current situation, a legal separation makes the most sense for their next step. But what exactly is the difference between divorce and legal separation?
People often use “divorce” as a catch-all term to describe ending their marriage, but in many cases, they are actually referring to both divorce and legal separation. While these two processes may seem similar on the surface, several important distinctions set them apart.
What Is a Divorce?
A divorce is the legal process that ends a marriage. Both parties must demonstrate to the court irreconcilable differences or severe problems within their relationship, and proving this can take some time.
When you have a divorce, you must file papers with your state government to terminate the marriage. You may also need to separate your property or divide any debt that you and your spouse share so that you can start over as two single individuals. After completing these tasks, paying off any debts and dividing your property, submitting proper paperwork, and receiving an official divorce decree from the court of law, you will be effectively divorced.
What Is Legal Separation?
Legal separation is an alternative way to end your marriage physically, but not necessarily on paper. When you are legally separated, both parties still retain the legal status of being married but no longer live together or share any marital assets like property and debt.
Legal separation does not typically require that one party file for divorce papers with their local court. Rather, it only requires that the couple separate in every sense of the word. If you and your spouse decide to live apart, then this could be considered a legal separation if the rest of your shared assets are divided or debt is paid off together.
What’s the Difference?
The primary difference between divorce and legal separation is that for one party to file papers with their local court asking for a divorce, the marriage must be deemed irretrievably broken. However, you can still legally separate without filing for divorce. Legal separation does not mean that your marriage is over and done with forever as a typical divorce would.
With a legal separation, both parties remain married until they file papers to end their union and receive an official decree from the court.
In a nutshell, divorce ends your marriage while legal separation separates you from your spouse until the couple decides to return together or officially divorce. Differentiating your decision is one area where a lawyer can help.
Why Should I Get a Legal Separation Over a Divorce?
Legal separation does not always equate to divorce, and there are some cases where it is preferable over a full-blown divorce. For example:
- You may be unsure if you want to get a divorce and need time apart from your spouse to determine if the relationship is worth saving or not.
- You or your spouse may be hesitant to ask for a divorce because of religious beliefs (and if you do want the legal protection of ending your marriage without going through with an actual divorce).
- You may both still want to receive an entitlement of social security, pensions, medical coverage, and other benefits that only dissolve through an official divorce. Some programs are enacted after ten years of marriage, so legally separating allows two people to be independent without affecting the timeline of progression with these benefits.
- Filing for a legal separation can save time and money compared to a divorce.
However, before deciding whether or not to pursue a legal separation, you should speak with a family law attorney to find out if it is the best option for your specific situation.
Why Should I Get a Divorce Over a Legal Separation?
If you do not want to be married anymore, then a legal separation is simply not enough. Legal separation does not mean that you and your spouse are no longer legally linked together through marriage, so if you do choose to file for a legal separation instead of divorce, it is important to be aware that this will only give you the ability to separate from one another.
Choosing a divorce allows you to:
- Protect yourself and your children as a single individual in the eyes of the law
- Receive financial support from your spouse if separate maintenance or alimony is requested and awarded by a judge
- Receive your share of the marital assets
- Reclaim any property that you brought into the marriage or inherited during it (with some exceptions)
Divorcing After a Legal Separation
If you and your spouse already filed for a legal separation but later on realized that divorce is what you actually want, the process will be quite simple. Any judge will operate under the assumption that the experience in a legal separation has validated the feelings of an irretrievable breakdown in the marriage and mutual desire to have an official divorce. A divorce will only be granted as long as you and your spouse file for a joint divorce petition, and you will be granted your decree of absolute divorce.
How Can I Begin the Process of Divorce or Legal Separation?
The first step would be to determine where the problems are. Did one spouse commit adultery, or is the other’s drug addiction causing concern? Maybe financial strain has become unbearable, or there are significant differences in how each parent wishes to raise their children. Next, identify your individual goals during this process. Do you want custody of your children? Do you need spousal support? All of these questions should be answered before moving on with any next steps. A lawyer will also likely advise people dealing with high net-worth divorces or dissolving families about their particular legal concerns related to taxation, property division, and more.
Following this type of guidance and probing questions from a professional can help parties decide whether or not it is in their best interest to go through with a formal divorce or legal separation. Once a decision has been made, your lawyer will work very closely with you to ensure the desired outcome.
Professional Legal Support from Khalaf Law Group
Khalaf Law Group is an experienced law firm in California that specializes in family law. Our highly professional staff offers legal support for divorce and legal separation cases, as well as child custody disputes. We are highly committed to achieving the best possible results for our clients in every case we take on. Our clients rave about the outstanding results they receive in court after putting their trust in us during this difficult time in their lives. If you are dealing with a family law issue, do not hesitate to contact Khalaf Law Group for more information on how we can help advance your legal needs from inquiry to execution.