When it’s clear that a marriage is no longer working, some couples question whether divorce or separation in marriage is a better choice for their situation. Though these phrases are sometimes used interchangeably, the two are different things.
Legal separation allows you to remain married while separating from your spouse in other legal aspects. In a sense, it gives you a preview of what divorced life would be like and, at the same time, provides a safety net in case you decide to reconcile with your spouse.
In this article, we explore how legal separation works, why some couples pursue it and the advantages and disadvantages of separation in marriage. We also discuss legal separation versus divorce and other ways to end a marriage.
What is legal separation?
Legal separation is an alternative to divorce that holds the force of law. To legally separate, you have to get a state court order. This order typically covers the same topics a divorce order would cover, such as:
- Child custody
- Child support
- Spousal maintenance
- Property division
You can’t remarry after a legal separation until you divorce or have your marriage annulled.
Where may you get legally separated?
Legal separation is available in some form in every state except:
- Delaware
- Florida
- Georgia
- Maryland
- Mississippi
- Pennsylvania
- Texas
In addition, Indiana lets couples stay separated for only one year before they have to either reconcile or begin the official divorce process. Similarly, Hawaii sets a two-year cutoff date.
How does legal separation work?
In many states, legal separation is functionally equivalent to divorce except that you remain legally married. Separation also allows more flexibility than divorce, especially in terms of property division, allowing you to set less restrictive rules of separation in marriage. However, some states, like Illinois, don’t authorize courts to separate a couple’s property without agreement from the spouses.
If you and your spouse negotiate and come to an agreement about the terms of the separation, the court will typically enforce that agreement through an order. Usually the order addresses separating your finances, child custody and visitation, child support and spousal maintenance.
If you can’t reach an agreement on any or all the issues that the separation order needs to address, the court can decide for you.
After separating, if your spouse fails to follow the order, you may request the court to enforce it.
Why might you want a legal separation?
There are a handful of common reasons that might drive a couple to pursue legal separation in marriage.
Hope for reconciliation
It’s not unheard of for legally separated couples to get back together. However, this is much harder for divorced couples.
Timing
Some people may be confident they’ll divorce later down the road but choose legal separation now for reasons such as:
- Divorce may be simpler once any children reach the age of majority and are no longer entitled to support.
- They want to space out the process to avoid feeling overwhelmed or harming their physical, mental or emotional health.
- It may empower victims of domestic violence to work up to an official divorce.
Financial reasons
A legal separation may enable the spouse who earns less to work toward financial independence. Additionally, certain entitlements, such as retirement benefits or beneficiary designations, require people to remain married for certain lengths of time before they accrue. You and your spouse may legally separate as an intentional step preceding divorce that may protect one or both spouse’s entitlements.
Personal preference
You may want to redefine your relationship, hold religious views that forbid divorce or want to make an ambiguous informal separation unambiguous. Getting a legal separation is your and your spouse’s prerogative, and you don’t owe anyone an explanation.
What are the advantages of legal separation?
Legal separation may have several advantages over an immediate divorce.
Clearer terms than an informal separation
Although separation in marriage is difficult no matter the form, legal separation mitigates one of the hardest parts of separation—ambiguity—without requiring you to take the irreversible step of divorce. Legal separation allows you and your spouse to get on the same page regarding your rights and responsibilities. You’re empowered to seek child support, set rules regarding custody and visitation, request spousal maintenance and split your property. And if one spouse doesn’t follow the rules, you may legally enforce your court order.
Distance from the marriage
Some spouses find that legal separation takes pressure off the marriage. Seeing what your lives are like apart may convince you that divorce is the right move, or it may give you a clearer picture of how to resolve issues that seemed impossible before the separation.
Potential positive change
Living as individuals instead of a couple may inspire individual change. You may seek mental health treatment and start to see your relationship in a new light. Or your time apart may teach you that you can be independent in ways you never thought possible.
Gentle pathway to divorce
Many people experience shame surrounding the end of a marriage. Legal separation may soften the blow, at least for a time. It allows you to control the narrative and timing of a potential divorce. You have the stability of a legal court order setting rights and responsibilities—and also the safety net of still being married, in case you change your mind.
What are the disadvantages of legal separation?
While legal separation has its benefits, it’s not for everyone. Below are some potential disadvantages.
No finality
One of the hardest parts of separation in marriage is often dealing with the ambiguity of the relationship. Unless you live in one of the states that sets a time limit on legal separation, you may not know when or how the legal separation will end, if it does.
Uncertain boundaries
Setting the legal terms of your separation may often be easier than setting the personal terms. You may struggle to figure out how to act around your spouse and be unsure where personal lines are.
Questions from others
Legal separation is little understood. You may be asked to explain your marital status many times over—and not really know how to explain the situation. Additionally, your relationships with your in-laws may feel impossible to navigate.
No chance to remarry
Since you’re still married, you can’t get married again. This may not be an issue for every couple, but it may be a real hurdle in some situations.
Divorce vs annulment vs legal separation vs informal separation
You may pause or end a marriage in a number of ways, including:
- Divorce: An official end to the marriage based on nearly any reason
- Annulment: An official end to the marriage based on laws that may invalidate the marriage or declare the marriage legally invalid from the start
- Legal separation: A status where the spouses remain married but live separate lives under an official separation agreement
- Trial separation: An arrangement intended to be temporary where spouses aren’t legally separated but living apart
- Permanent separation: A permanent informal separation where spouses live separate lives without seeking divorce or legal separation
Which of these options works best for you depends on you and your spouse and the particular circumstances of your lives.
How a lawyer may help
Only you can determine whether you should legally separate from your spouse. That said, consulting with an experienced family lawyer who knows your state’s laws may provide invaluable knowledge. A lawyer can explain what legal separation allows you to do, advise you on the legal implications of any type of separation you’re considering and help you draft and negotiate the terms of a separation.
