Distinguishing Between Legal Separation & Divorce

Is divorce the only option when a marriage breaks down? Are you leaning toward divorce but want to know if there is a middle ground? Depending on your circumstances, a legal separation may be worth exploring. While offering nearly identical financial protections, a legal separation may provide a few benefits. Let’s take a look at the features of each option so you can consider what path is right for you.

Distinguishing Between Legal Separation & Divorce

Legal Separation

Legal separation keeps the marriage itself intact while dividing property and implementing support orders and custodial orders if you have children. You and your spouse will retain your marital status, but can move to separate homes, maintain separate finances and officially live your own separate lives. With a legal separation, you will still need to go through the traditional legal channels to file the necessary paperwork, complete the financial disclosures and obtain court approval of your legal separation agreement (stipulated judgment). When the process is complete, your financial connections will be severed, but you will remain legally married to your spouse for an indefinite period of time. It should be noted that at any time after the legal separation judgment is entered, either party may file a separate divorce action to terminate the marriage, understanding that the prior orders made in the legal separation judgment cannot be reopened. The key to a legal separation is that both spouses must agree to the arrangement at each phase (pre and post-Judgment).


Divorce (or “dissolution” meaning the marital status is dissolved) is the more traditional route where, after a waiting period of six (6) months, property and support orders are entered by the court and returning both spouses to their single status is accomplished simultaneously. The legal and court costs for divorce and legal separation are similar because the processes are nearly identical.

Benefits of Legal Separation

There are personal and financial reasons for a couple to consider a legal separation. For example, if both of you are unsure that you want to officially end your marriage, a legal separation can give you the time needed for counseling or time apart while protecting both of you financially. Also, if your religion prohibits divorce, legal separation can be a good option. If you do not meet the minimum residency requirement for a divorce in California, filing for legal separation allows you to obtain temporary orders until the requirement is met for a divorce filing. For more info on residency requirements, check out May’s blog on commonly asked questions.

A few specific financial benefits are afforded with a legal separation. Health insurance coverage from a spouse’s job with eligibility for legal dependents might be maintained with a legal separation, whereas coverage would be eliminated when the marital status is terminated in a divorce. This was especially important when preexisting conditions prohibited individuals from obtaining health insurance on their own in the past.

You and your spouse can also continue to file taxes jointly, which may offer tax benefits. You also may qualify for retirement-related benefits through your spouse such as a military pension or Social Security derivative benefits which require a marriage of ten (10) years in length. If you have not reached this requirement, a legal separation might help you stay legally married so you can achieve this eligibility.

Benefits of Divorce

If you are certain that you want to end your marriage, and if there are no personal or financial reasons to stay married, then a divorce is the cleanest option. Also, if you plan to remarry in the future, you can only do so after your previous marriage has been terminated. For most couples who separate, they want to sever all ties and effectively “start fresh” such that remaining legally married to their spouse is not so appealing. For most people, ending the relationship means ending the marriage. The majority of people divorcing for the first time will enter into another long term partnership following their divorce so that leaving the pathway clear to a subsequent marriage is desirable and will be favored by the new partner. When you know the marriage is over, saving time and money with a straightforward divorce is likely the best option.

Not all states offer legal separations and the benefits of the process vary by state. For the most current information, contact a lawyer specializing in family law in your state for guidance.