Legal Separation vs Divorce

The general public often uses the terms “divorced” and “separated” interchangeably. However, divorce and legal separation have two very different meanings under the law. Before proceeding with a divorce or a separation, there are some important things to know.


Divorce is the dissolution of a legal contract of marriage. While a divorce puts an end to a marriage, the law will always recognize that the parties were once married and may enforce financial and property obligations against either of the former spouses as a result of the marriage. Most states allow divorce on the following grounds:

  • Irreconcilable differences: Commonly known as a “no-fault” divorce, “irreconcilable differences” simply means that the parties, without placing blame, recognize that the marriage is irretrievably broken and that they can no longer continue as husband and wife.
  • Mental Cruelty: As used in a divorce petition, mental cruelty is defined as causeemotional distress through constantly arguing, yelling, screaming, and criticizing your spouse
  • Adultery: One of the more common reasons that lead to a Divorce is defined as having an extra marital affair with an individual outside besides. Depending on state specific divorce laws, some states require proof of extra marital sexual intercourse taking place, while same may take into account less than that
  • Physical Cruelty: When a party charges physical cruelty in a divorce petition, he or she typically has to prove that physical abuse or involuntary imprisonment took place during the marriage.


The primary difference between separation and divorce  is that, unlike a divorce,  a legal separation recognizes a marriage as legal and valid. And, unlike a divorce, a separation does not end a marriage.  Rather, parties who are legally separated remain married while living separate lives. Some of the issues that can be addressed in a legal separation agreement are:

Differences Between Divorce and Separation

Despite the obvious difference (that divorce ends a marriage while a separation does not) there are some very important legal distinctions between divorce and legal separation.  Some legal differences you should be aware of are as follows:

Not every state recognizes legal separation: Many states do not provide for a legal separation process. Rather, the concept of “separation” in those states is used primarily establish that the parties have not lived as a married couple for the requisite time before the divorce decree is entered. Before deciding if divorce or separation is the best option for you, make sure that your state allows legal separations.

Separation May Affect a Divorce Settlement: If you think that you might eventually file for divorce, you should be especially careful in negotiating and drafting a legal settlement agreement, the legal contract that sets out the terms of the separation. This is because many legal separation agreements are converted into divorce decrees by the Court. Courts often assume that, if the parties were satisfied with the separation agreement, there is no reason a divorce decree should not continue the status quo.

Legal Separations Can Affect Property Rights: While parties who are separated retain all the same rights to marital property as those who are not legally separated, courts often use the date of separation as an unofficial cut-off point for property rights. This means that if you obtain a legal separation and your spouse later wins the lottery, the court may decide that you are not entitled to some or any of the winnings, even though the money is technically marital property. Before filing for separation, find out if your state requires the court to make an “equal” distribution or an “equitable” distribution of the marital property.

Legal Separation Can Be Just As Emotionally and Financially Upsetting as Divorce: Often times, people think that filing for separation or entering into a “trial separation” will be easier on everyone than filing for divorce. However, if you file for a legal separation, you will still have to go through the process of negotiating a host of issues, such as child custody, visitation, child support, spousal support, and property distribution, as you will in a divorce, without the added benefit of actually being divorced at the end of the process. The best time to make a decision as to whether divorce is right for you is before you file for any kind of change in marital status, be it separation or divorce.

Legal Advice for Separation

A legal separation agreement is a complex and sometimes difficult to negotiate document. It is imperative that, before negotiating such an agreement with your spouse, you know your rights under your state law. Accordingly, if any issues remain unresolved between you and your spouse, or if you have a substantial or complex marital estate, it is always advisable to consult with a qualified family law attorney before signing or negotiating any documents.

Both legal separation and divorce are complicated procedures that should  not be entered into lightly. Before you move forward with either a legal separation or a divorce, make sure that you have researched the applicable law in your state well and that you understand how either legal process will affect your rights.

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