What Are the Benefits of Legal Separation Vs. Divorce?

By Joseph Nicholson

Obviously, no marriage sets out to end in divorce or legal separation, but the reality is that many do. And just as marriage has legal implications for taxes, liabilities and ownership of property, if you are ending a marriage, you have to consider these same issues. But whereas divorce is final, legal separation offers most of the same benefits--plus a few extra--and the added flexibility of possible reconciliation.

Identification

Legal separation requires the filing of a petition for legal separation in a state court. The process is very similar to divorce, but does not terminate a marriage. Instead, the couples are able to divide their property and erect barriers that do not usually exist in marriages. Legal separation, for example, can eliminate a spouse's claim to property previously owned by the other spouse that, under marriage, would likely be considered jointly owned. The process can be somewhat more streamlined than divorce, since no grounds for the separation have to be proven.

Function

Both legal separation and divorce are used to recognize an unsuccessful marriage. Both use the authority of the court to divide the spouses' property, separate each other from certain debts and establish alimony, child support payments and child custody. The additional benefit under legal separation that is not available through divorce is that spouses can preserve certain rights they enjoyed under the marriage. This includes hospital visitations, but is more likely to center on financial concerns, such as insurance coverage, pensions or government benefits. For example, Social Security benefits are available to spouses if their marriage lasts for at least 10 years.

Benefits

The major difference between divorce and legal separation is that legal separation does not dissolve a marriage. Therefore, spouses who are only legally separated cannot remarry without getting a formal divorce. This has the potential benefit of making it fairly easy for the couple to reconcile and continue their life together as married spouses, if they desire, without having to go through the marriage process again. It can thus serve as a sort of cooling-off period. Legal separation, however, is not the same as trial separation, which only involves a physical separation but not an intervention of the court to divide the couple's assets and liabilities.

Features

One reason couples avail themselves of legal separation instead of divorce is because divorce carries a stigma in their religion or is against their moral values. Going through a divorce would, in some way, carry negative implications. Legal separation, in these instances, provides virtually all the material benefits of divorce without invoking this emotionally charged word. Legal separation does not allow for remarriage, but it must be assumed that those who forsake divorce for religious reasons are also not planning to remarry.

Considerations

It might actually be beneficial for spouses to remain married but go through legal separation if one spouse is largely dependent on the other for health insurance or other similar benefits. A court would consider the cost for the dependent spouse to independently obtain similar coverage and generally enjoy the lifestyle to which he was accustomed in the marriage. This would likely be more expensive and could be charged largely to the other spouse in the form of spousal support or alimony. In many cases, legal separation allows the spouse to remain on an employer's health insurance, saving the cost to both parties.

About the Author

Joseph Nicholson is an independent analyst whose publishing achievements include a cover feature for "Futures Magazine" and a recurring column in the monthly newsletter of a private mint. He received a Bachelor of Arts in English from the University of Florida and is currently attending law school in San Francisco.