When a marriage has reached the point that the partners can not agree on a way to keep it together, the only question is, “What is the best way to end it?” There are really only two options, but the choice between the two is not always obvious. This short guide will help weigh the pros and cons of legal separation vs. divorce, and give you and your spouse some of the key facts you need to make the appropriate decision.
Legal Separation and Divorce: Key Differences Explained
To state the difference between divorce and separation in the simplest terms, divorce severs the marriage completely, while separation leaves it technically intact. Couples may choose either a trial separation or a permanent separation. Either way, a couple need only decide to reconcile and the marriage will continue as before. Separation agreements may or may not include stipulations about the division of assets, but spouses retain next-of-kin status and continue to have medical decision-making rights with respect to one another. They may often even continue to share health care benefits.
With a divorce, the marriage is legally ended, and marital assets are divided accordingly, leaving each spouse as a single entity once the divorce agreement is signed. They are no longer regarded as next of kin, and hold no medical decision-making rights over each other. Divorce is a complete and final splitting of a married couple, while separation is incomplete and potentially reversible.
Separation can be done informally or legally. 42 states, including California, recognize legal separation. On the other hand, divorce is always a legal process and is recognized in all states.
Pros and Cons of Choosing Legal Separation
The primary reason that most couples choose to separate rather than divorce is that they are not yet entirely sure that their marriage is unsalvageable. They may want to try separation as a test to see whether divorce or reconciliation is the next step. Separation allows that time to determine whether reconciliation is possible. If the partners should change their minds, the separation can easily be retracted and revoked by the court. Since the couple does not pursue full divorce proceedings, separation is also cheaper than divorce.
However, there are also some cons involved with divorce. The couple’s tax situation may change, and they may lose the ability to make some of the deductions they had previously enjoyed. Although healthcare benefits may remain intact for spouses, this is not guaranteed. It would depend on the insurer and the plan in question, particularly where employer-sponsored plans are concerned.
Financial Standing and Divorce Impact
If you choose to go through a legal separation, you will remain married in the eyes of the law. However, the court will still divide your property and debts, and put provisions in place for financial support between spouses, much as it would in the case of a divorce. You can ask the judge to make orders regarding asset division, debt payments, spousal support, and child support. In this regard at least, a separation agreement can look very similar to a divorce, except that its provisions are instantly reversible if the couple decides to reconcile.
Child Custody During Legal Separation and Its Impact
In the case of a legal separation, barring any serious abuse or questions of child safety, the couple can generally reach their own agreements regarding child custody. However, a judge can be asked to rule on the matter, and give specific orders about child care and custody. Unlike divorce, separations will almost always involve joint custody of children. Divorce cases may also lead to this conclusion, but they may also result in one parent being granted sole custody.
Westover Law Group is a company of family law attorneys serving Southern California. Contact us if you need a divorce attorney to help you decide on the merits of legal separation vs. divorce.