Key Differences Between Legal Separation and Divorce

Marriages can face several challenges along the way that may weaken the foundation of the relationship. Marital conflicts can vary in severity. In some cases, they lead to separation. When such moments come, there are two options: legal separation and divorce.

To know the most suitable postnuptial arrangement, you must first understand the difference between legal separation and divorce to fully assess the situation and your dispositions. Read more to discover the main differences between these two legal procedures.

What is legal separation?

A legal separation is where a couple agrees to separate without dissolving the marriage. In other words, they remain legally married while living separately. Despite the physical separation, they may still be entitled to certain benefits and rights associated with marriage.

There are two types of separation: informal and formal. An informal separation doesn’t involve any legal proceedings. Couples may divide their assets, establish separate living arrangements, and determine their arrangements regarding child custody and financial responsibilities without any third-party intervention. On the other hand, formal separation involves filing a legal separation in court, which decides on these crucial aspects.

What is a divorce?

A divorce represents an official or legitimate end to a marriage. This permanent separation often involves court mediation to reach an agreement regarding alimony, custody, and assets and debts division, among other aspects.

What are the key differences between legal separation and divorce?

The main difference between legal separation and divorce lies in the legal status of the marriage. Consequently, several aspects are also affected. Here’s a closer look into their key differences:

1. Decision-making

In many states, a spouse is considered as the next of kin. Therefore, they’re entitled to make crucial decisions on behalf of the other partner. In a legal separation, the spouse is still considered the next of kin.

However, in a divorce, the marriage is permanently dissolved, so the spouse is no longer considered the next of kin and, therefore, can’t make any decision on behalf of the other.

2. Marital status

As stated, the marriage is terminated during divorce, meaning ex-spouses are free to remarry. Fortunately, remarrying doesn’t affect the child custody arrangements, meaning the remarried spouse will still have to support and visit the child as stipulated by the court unless a new evaluation is done.

In a legal separation, couples are technically still married. Therefore, they are not allowed to remarry during the separation period and can reconcile to get back together if they choose to. However, the court recognizes the separation and may issue orders or rulings related to child custody, spousal support, property division, and other matters similar to a divorce proceeding.

3. Marital benefits

Legal separation offers the opportunity to maintain certain benefits, such as health insurance, unemployment insurance, and specific social security benefits. These benefits, particularly social security, offer spouses protection against market fluctuations. However, these benefits are not always guaranteed, as they may be subject to state laws and the terms of insurance agreements.

In contrast, in the case of divorce, former spouses typically don’t retain access to these benefits. Through divorce, the marital ties are severed. With them, many of the privileges associated with being married are also terminated, such as health insurance coverage through a spouse’s employer-sponsored plan and unemployment insurance benefits.

4. Debts and liabilities

The division of debts and liabilities is different during legal separation and divorce. When a couple is legally separated, they are still jointly responsible for any marital debts incurred during the marriage.

In divorce, the division is determined by either the community property or equitable distribution model. Under the community property system, marital debt is typically split equally, while the equitable distribution model allocates marital debt justly. Additionally, specific attention is given to particular debts, such as gambling-related ones, where the individual who incurred the debt is typically obligated to cover the entire amount.

5. Property division

Property ownership is always protected during a legal separation. However, the spouses can agree to divide the property however they want. The arrangement could be done for financial or custody reasons.

In divorce, marital property is divided like marital debt through equitable distribution or a community property system.


Legal separation and divorce are often confused with each other but are different. While they involve couples separating, there are key differences between them. Understanding these differences is crucial in knowing your rights, debts, liabilities, and other responsibilities. However, in either case, it’s always advisable to consult with an attorney before proceeding with legal separation or divorce to ensure informed decision-making.

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