Deciding between legal separation and divorce can feel confusing until you understand how they compare.
Knowing the differences between legal separation and divorce is essential to making the right choice for you and your spouse. You can use this knowledge to choose your path with confidence — ultimately ensuring the best outcome for you, your spouse, and, if you have them, your children.
In this post, we’ll explore the key distinctions between legal separation and divorce and explain how a divorce mediation center can help you make the best decision for your future.
Legal separation vs divorce: What’s the difference?
Let’s compare legal separation and divorce.
What is legal separation?
In a legal separation, spouses remain legally married while most often choosing to live apart. This process requires agreement or a judge’s order on the same issues as divorce, including asset division, spousal support, and child custody.
Legal separation is often chosen by spouses who need time apart to consider their relationship while maintaining certain marital benefits, such as health insurance coverage. Others may choose legal separation because of religious or moral objections to divorce.
What is divorce?
Divorce is the legal dissolution of a marriage. It severs all legal ties between spouses, allowing them to marry again if they wish.
A divorce agreement settles matters such as division of assets, spousal support, and child custody. Unlike a legal separation, it represents a permanent end to the marriage.
Is a Legal Separation vs. Divorce right for me?
What factors should influence your choice between legal separation and divorce?
It’s essential to consider a range of personal, legal, and financial factors when making this decision. The right choice for you will depend on your specific circumstances, goals, and values.
Here are some things to consider:
1. The likelihood of reconciliation. If you and your spouse believe there’s a chance you will reconcile, but need some time apart, a legal separation can provide that opportunity without permanently ending the marriage. In a study of 1,200 separated individuals, 10% of spouses reconciled — though the available statistics on this subject vary.
2. Health insurance. Many spouses choose a legal separation to remain on the same health insurance. If you rely on your spouse’s health insurance, or vice versa, keep in mind that divorce eventually leads to a loss of dependent coverage. Most, but not all, policies will allow a legally separated spouse to maintain insurance coverage during the separation. Always verify with your insurance provider whether your coverage extends to a legally separated spouse.
3. Financial considerations. In some cases, separating but remaining legally married can have financial benefits. These may include maintaining joint credit or having continued access to health insurance benefits, social security benefits, and tax benefits.
4. Religious or moral beliefs. Some individuals have religious or moral objections to divorce. Many spouses with strong religious beliefs opt for a legal separation over divorce despite having no intention of rekindling their relationship.
5. Children’s well-being. Some spouses feel that a legal separation is less disruptive for their children than a divorce. However, it’s also important to consider the potential confusion or false hope that a separation might cause. Research shows that providing closure for children is a key factor that contributes to their emotional well-being, so parents should weigh the benefits of legally separating with their expected timeline to make the best decision for everyone affected.
6. Legal protections. Both divorce and legal separation provide legal structures for issues like asset division and child custody. However, sometimes, immediate legal protections or orders (like child custody decisions) are necessary, and you might not be ready to finalize a divorce process. A legal separation can provide a legal framework without a divorce.
What is a trial separation, and when is it a useful option?
A trial separation is an informal agreement between spouses to live separately for a certain period of time while they decide whether to continue their marriage or proceed with a legal separation or divorce. It can provide a valuable “cooling-off” period if spouses are facing marital difficulties.
A trial separation can be a workable option when spouses are uncertain about the future of their marriage but not ready to step away from it. Essentially, it is an opportunity for them to determine if they’d be happier living separately. However, many spouses choose to legally separate without experiencing a trial separation.
An informal, temporary arrangement does not involve the courts, nor does it provide the same legal protections concerning the division of marital assets, debts, child custody, and spousal support as legal separation. Therefore, it is beneficial for you to agree on certain rules and expectations before a trial separation, as this will help you to avoid potential conflict.
Spouses might agree to undergo joint or separate counseling sessions during a trial separation. They may also have a predetermined date on which they’ll re-evaluate your situation after spending time apart. During a trial separation, spouses may find it helpful to work with a mediator to reach informal agreements that ensure financial stability and optimal parenting arrangements.
Separation and property: How does the division of assets work?
One of the most crucial considerations spouses must make during marital difficulties is how to divide shared assets. When going your separate ways, how do you ensure you can both hold on to a fair share of the wealth from the relationship?
The divorce vs legal separation question becomes relevant here, as the procedure for dividing assets varies by process and case.
Division of assets in a divorce
A divorce requires that you legally separate the joint estate you shared with your spouse during your marriage. This includes real estate properties, vehicles, shared business interests, retirement funds, and even debt.
In some states, the equitable distribution principle is followed, meaning that shared assets are divided in a fair but not necessarily equal way. Equitable distribution considers factors such as each spouse’s income, earning potential, and contributions during the marriage.
Division of assets in a legal separation
The division of assets in a legal separation can be more complex than in a divorce. You and your spouse can agree to handle the division of your joint assets during the trial separation period or to divide them at the time of legal separation. For instance, you’ll need to decide who will remain in the family home or to sell it, how your bank accounts will be handled, and how any debts will be paid.
In some states, the division of assets isn’t as final in a legal separation as it is in a divorce. This means further complications can arise down the line, especially if one or both of the spouses’ financial circumstances change. In other states, legal separation terms become final divorce terms if the legal separation is converted to a divorce.
Mediation can be extremely beneficial for legal separation, as it helps you and your spouse arrive at a separation agreement that you’ve both freely considered and accepted.
How to make your divorce or legal separation harmonious for your kids?
You can apply certain approaches to keep your parenting relationship as cordial as possible in the event that you part ways with your spouse.
When spouses legally separate or divorce without engaging in a court battle, they have better relationships with their children and healthier co-parenting relationships with one another. Kids also have an easier time coping with their parents’ divorce when they are no longer exposed to their parents’ conflict and are able to gain some closure on the experience. In fact, 50 years of research confirms that the #1 indicator of a child’s long-term psychological well-being is experiencing an end to their parents’ conflict when the legal separation or divorce happens.
In both divorce and legal separation, mediation can play a significant role in helping parents reach amicable separation agreements on child support and custody. Mediation allows parents to make arrangements that are personalized to their unique family circumstances — ultimately benefiting both of them and their children.
It’s essential to maintain a respectful approach to all aspects of your separation or divorce — especially those that relate directly to your kids, such as child support and child custody.
An amicable divorce and children
In a divorce, child support and custody arrangements are legally binding and generally permanent — though they can be modified if the divorcing parents’ circumstances change significantly or the parents themselves agree to change them.
One parent may be required to pay child support to the other. This amount is usually determined using specific guidelines set by the state that consider factors such as each parent’s income, the number of children they have together, and the amount of time each parent spends with the children.
In divorce mediation, parents can generally deviate from state law and reach an agreement on their own child support amounts they both feel are in their children’s best interests.
Divorce and legal separation proceedings also involve determining both legal and physical custody of the children.
Legal custody pertains to the right to make significant decisions regarding the children’s welfare, education, and health. It can be either joint or sole, depending on the children’s best interests. Most states tend to grant joint legal custody, also known as joint legal decision-making authority unless there are reasons to grant one parent sole legal custody.
Physical custody, commonly called “parenting time,” refers to where the children will live after the divorce or legal separation. In states that use the term “physical custody,” the custody can be deemed either joint or sole. In states that use the term “parenting time,” one parent may be designated the primary residential parent — although a description of the parenting time schedule is usually enough without giving the parents separate designations.
Temporary child custody arrangements are usually made during a divorce or legal separation to provide stability for the parents and children. In mediation, the parents address temporary agreements at the beginning of the process so that a plan is put in place right away. In the end, the parents can reach final agreements that either reflect these temporary arrangements or a different plan entirely.
Legal separation and your children: Communicating what it means
Issues regarding your children during a legal separation are the same as they are during a divorce. A legal separation requires a Parenting Plan that addresses how the parents will share time with their children, make major decisions about their children’s care, and resolve any financial matters, such as child support, expense sharing, and taxes. In fact, in most states, child custody law is exactly the same in a legal separation as it is in a divorce. Mediation remains the most beneficial way to legally separate.
The most important consideration for parents is how to communicate with their children about legal separation.
When explaining your legal separation to your children, it is helpful for you and your co-parent to present a united front. Discuss ahead of time what you plan to say to them. You can also get support from a professional, such as a children’s therapist, if necessary.
You want to convey that the two of you have made the decision to take some time apart or that the decision to separate is permanent, depending on your circumstances.
Avoid creating a sense of one parent having wronged the other, as this can cause your children a great deal of stress. Your kids will need reassurance that both of their parents love them and that the separation is not, in any way, their fault. Furthermore, keep in mind that they do not need unnecessary details; they simply need to know that you will both still be there for them. For their sake, paint your co-parent in the best possible light.
During this time, support your kids by keeping the lines of communication open and encouraging them to express how they are feeling. Fair warning: their feelings may not always be easy to hear. This is an opportunity for you to build a deeper relationship with them. With a little planning, you can support your kids as your family goes through this transition.
The advantages of mediation in a divorce or legal separation proceeding
Mediation can help spouses deal with every aspect of their separation or divorce. Using a mediator to successfully negotiate means you won’t ever have to go to court. And your chances of a successful mediation, whether or not you’re dealing with conflict, are extremely high.
You can also personalize the mediation to suit your needs. For example, if you’d like to have attorneys present during your mediation meetings, that can be facilitated. If you’d like for each party to have time alone with the mediator to explain their situation, that can be accommodated as well.
The Aurit Center offers online mediation, so all meetings take place via Zoom. That way, the spouses can decide to attend meetings together in the same room or from their own separate residences, based on their comfort level. The convenience of online mediation is one of its biggest benefits.
Depending on the state you live in, a mediator may be able to write your final divorce decree and submit it to the relevant court on your behalf — meaning you might not have to deal with the court system at all. A mediator who is unable to draft your final divorce decree can always refer you to someone who can.
How mediation works
1. Guiding the process. Mediators help keep legally separating or divorcing spouses on track to reaching agreements. Rather than taking sides, mediators balance the spouses’ communication, their understanding of the law, and their understanding of agreements — ensuring that both spouses express their viewpoints in a respectful and productive way, and ultimately settle their case out of court.
2. Identifying issues. A mediator helps spouses identify every issue that needs resolution, such as division of assets, child custody and visitation rights, and spousal support. They help the spouses understand these issues, seek to understand what each spouse wants, and help them reach creative solutions so that both have their needs met with their own agreements — rather than a judge making the decisions for them.
3. Encouraging mutual agreement. Mediators do not make decisions for spouses. Instead, they strategically facilitate communication to help them reach mutually beneficial agreements. This results in solutions that are tailored to the spouses’ and their children’s specific needs and circumstances rather than court-imposed rulings.
4. Reducing legal costs. Mediation is typically a fraction of the cost of a court battle in litigation.
5. Improving co-parenting. When spouses use mediation to complete their legal separation or divorce, the cooperative, non-adversarial approach improves their ability to communicate as co-parents — and sets them up for long-term co-parenting success.
The legal separation vs divorce decision is simpler than it seems. With an understanding of the key differences between legal separation and divorce, you are better prepared to make an informed choice about which option will work best for you. Ultimately, the path you choose will depend on your unique situation and individual priorities.
At the Aurit Center, our expert professional mediators will guide you through legal separation mediation or divorce mediation, depending on the path you choose. Whether you and your spouse are respectful and have agreed on most things already, or marital conflict is causing you stress and negatively impacting your children, mediation is the best choice to reach optimal agreements and avoid a court battle.
You can stay true to yourself, support your children’s well-being, and move forward knowing that you chose the healthiest possible process for you and your family.
Schedule a free initial consultation at The Aurit Center today to find out how mediation works, learn what you can expect during the process, and have all your questions answered.