Legal Separation vs Divorce

By Tracy Rotharmel Shanks, Attorney

Most people thinking about ending the marriage are not well versed in the laws and procedure necessary to begin the separation or divorce process. There may be many options available to you to move forward, and those options can become overwhelming if not properly understood. This article is meant to help you understand the difference between two options that may be available to you – legal separation versus divorce. 

Woman holding wedding ring having to decide whether to separate or divorce

If a married couple wants to lead separate lives while living apart, they may choose to get a legal separation. A legal separation is a court order which establishes each spouse’s legal rights concerning child custody, child support, and separation of finances and/or assets. Additionally, certain states require that a couple live separate and apart before a divorce will be granted, and a legal separation will help meet this requirement.

It is important to note that every state has their own laws on separation and divorce. Some states, like the state where I practice – Louisiana – do not even have laws allowing for a legal separation except in very limited situations. You must do your own review of the laws of your state or hire an attorney to help navigate the process to determine the procedure for your sate. This article discusses legal separation and divorce in general, and should not be construed as legal advice regarding your specific situation.

What is the Difference Between Legal Separation and Divorce? 

There are several differences between a divorce and a legal separation including:

  • Marital Status: When a couple gets a legal separation, they are still considered married; in a divorce, the marriage is terminated. 

  • Tax implications: Because you to retain your marital status in a legal separation, you must continue to file your taxes as married. Divorce terminates the marriage and you can no longer file your taxes as married. 

  • Debt liability: In a divorce, if a debt was incurred during the marriage, both spouses are generally responsible for the debt. In a legal separation, it will depend of which state the couple resides in on how debt liability is handled. Some states treat debt liability in a legal separation just like a divorce. Other states, such as California, allow debts incurred after the separation to be classified as separate debt. 

  • Inheritance: Because legal separation allows you to maintain your marital status, spouses that are legally separated may usually inherit property from one another; divorced former spouses may not inherit from each other in the absence of a will. (Find out more about death of a spouse during a separation or divorce.)

  • Health insurance: Some insurance companies (but not all) will allow a spouse to remain on the other spouse’s insurance policy during a legal separation. Continuing coverage on a spouse’s policy after a divorce is granted is not allowed. 

  • Paternity: Any children born to a married woman are considered the children of the woman’s spouse. If the father of the child is not the spouse, the parties will have to file paperwork with the court to legally change the paternity of the child. A child born to a divorced woman is considered the child of the biological father (except in some states when the child was born within a certain time period following the divorce). 

  • Reconciliation: A legally separated couple who choose to reconcile can submit a request with the court to resume their marriage. A divorced couple would need to remarry if they wanted to make their reconciliation legal. 

Reasons for Choosing Legal Separation Instead of Divorce 

Beside some of the benefits listed above, there are some other reasons why a separating couple may decide to file for legal separation instead of a divorce including: 

  • A legal separation allows the marital status to remain intact, which is important for people whose religious beliefs don’t allow divorce.  

  • A legal separation might be easier for your children, as it allows a period of time to get used to the new separated situation before finalizing a divorce. 

  • Separating can be tool for reconciliation, as it can allow a couple to work on certain issues that may be impacting their marriage such as child-rearing or finances, while still protecting the rights established in the legal separation. 

What is the Difference Between a Legal Separation and a Trial Separation? 

Some people are living separately for years, even decades, before they file for divorce. Some people live separately for the duration of their lives without filing for divorce with the court. This is a “trial separation” or “permanent separation.” A trial/permanent separation is simply two people deciding to split up without officially filing paperwork with the court. The spouses will remain married and all marital implications will remain. The primary difference between a trial separation and a legal separation is that in a legal separation, the parties are able to formalize their separation and terms of their separation with a court order.

The best-case scenario in a trial separation is that the spouses decide to reconcile. However, sometimes, after several years or trial separation, one or both parties may decide to file for divorce to terminate the marriage. As a side note, a common problem when you wait many years after separating is that you may no longer know the whereabouts of your spouse, making your divorce more difficult to obtain (but not impossible).

How do I Obtain a Legal Separation?

Not all states recognize legal separation, including Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas. If you are considering a legal separation, you will need to find out what is permitted in your state.

To begin the process, you will need to file paperwork with the court to begin your legal separation and request any orders necessary such as custody, child support, spousal support/alimony, or use of property. If you and your spouse cannot agree on any of these issues, you can request that the court set a trial to make a determination on the contested issue. You should contact your local clerk of court or hire an attorney to help you access and file the proper paperwork and requests for your unique case. 

Tracy Rotharmel Shanks is an attorney practicing divorce and other related matters in New Orleans, Louisiana.  Her firm, Rotharmel Shanks, LLC, provides services to several parishes surrounding the Greater New Orleans Area.  Rotharmel Shanks, LLC is a woman-owned and women-run law firm.  Tracy is mother to two young children with a new baby on the way. 


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