File a legal separation or divorce – Which one to consider

We frequently use the terms divorce, legal separation, and separation reciprocally, but they have their own legal significance in different jurisdictions. It is important to know the dissimilarities, and your needs when going for your separation process. You must be very precise when filing your case to ensure that all of your rights are secured.


When partners or spouses opt for separation, it means that they have decided to part their ways amicably. Therefore, there is no need for legal paperwork. Though, various factors, such as retirement benefits, taxes, etc. may affect your legal rights when you opt for separation. It will be more helpful for you to consult an experienced family law attorney when you and your spouse consider this particular option. If you are bearing spouse/child support bills, or other policy payments, then you have to make arrangements for them as well, before you go for separation. However, in any case, if disputes occur, a mediator (third party neutral facilitator), or a family law attorney will help you both to come to an agreement.

If you and your spouse are not ready for filing a legal separation, then local courts in different jurisdictions offer support in connection with child custody and other provisions.

Legal Separation

Legal separation brings a considerable change in your marital status. To get separated legally, you need to file a separation petition in the local court that provides you a definite legal status before you opt for a divorce. It is not necessary to get legal separation before filing for a divorce.

The context of legal separation is similar to a divorce. In both cases, provisions regarding child support, visits, and final custody and alimony orders are included. But the costs incurred in payable taxes, debts, and family assets are divided between the two parties involved.

There is a major difference between divorce and legal separation in that, even if you have legally separated, you will still be called married. Some couples go for legal separation rather than divorce due to religious beliefs over a divorce, or to retain insurance compensations.


Divorce terminates a marriage, and of course, needs court involvement. All assets, possessions, are divided and the court will order to make proper arrangements for child custody and property.

It is often sensible to consult a qualified and experienced family law attorney if you seek separation of any kind. He will advise you on the whole procedure, meanwhile ensuring that your rights are secured.

Legal Separation and Divorce – Differences to Consider

A considerable difference between legal separation and divorce is that you remain married until you file for divorce. The rights that get affected are listed below:

Health Benefits: In a legal separation, healthcare benefits can be availed by a spouse, while some social security benefits dissolve under divorce.

Marital Status: After a legal separation, you are allowed to keep your marital status, which means you cannot remarry until you get a divorce.

Decision-making: Financial and medical decisions can still be made by a spouse for the family in a legal separation, whereas, divorced spouses are not allowed to do so.

Liabilities: Spouses are equally responsible for the debts and taxes in a legal separation, meanwhile as far as the divorce is concerned, the liabilities are arranged during the process.

Property rights: If a spouse dies after legal separation, then property rights will be transferred to the other spouse. However, divorce terminates this right.

Remarriage: If spouses want to reconcile after legal separation, they can do so, while divorce terminates the relationship for good.

Legal Separation and Divorce – Similarities

Local courts propose legal separation and divorce rights to the couples that may vary across states. Generally, court orders include:

  • Child visitation
  • Child custody
  • Separation maintenance (in a legal separation, child support and alimony is granted, but in divorce, it can be obtained by a motion petition)
  • Property division (based on the situation of couples)

As stated earlier, every state has her own regulations regarding property, debt, and asset division, so it is important for you to check local state requirements, before you make any decision. Not only local court requirements – for legal separation or divorce – are important to know, consulting a family law attorney is equally important who will advise you on sorting out matters that might create disagreement in the future.

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