Divorce vs. Legal Separation: What's The Difference?

Posted by Jason M. Venditti | Mar 04, 2016 | 0 Comments

It's estimated that nearly half of all US marriages end in divorce. This number is even greater for couples on their second marriage. But an alternative to divorce may come in the form of a legal separation, which offers its own unique advantages and disadvantages.


Divorce and legal separation have many of the same characteristics and purposes. They both offer a legal solution to married couples who no longer wish to be together. They both allow couples to separate their bank accounts, investments, finances and property. They both handle child custody. And they both cover spousal support (known as alimony when speaking in the context of divorce).

Difference Between Divorce and Legal Separation

This may sound kind of obvious, but the key difference between a divorce and legal separation is that couples are no longer officially married after completing a divorce. The marriage has ended, and both parties are free to remarry if they choose.

This is in stark contrast to a legal separation, in which couples who are legally separated are still technically married; thus, they must check the “married” box on tax forms, health insurance applications, and other documents. Couples who are legally separated are also prohibited from remarrying.  In order to remarry, they must have their legal separation converted to a divorce.

Reasons to Choose Legal Separation

There are a number of reasons to choose legal separation over divorce. Many couples have strong religious beliefs that discourage or prohibit divorce, forcing them to seek legal separation as an alternative. And even if a couple's religion doesn't specifically prohibit divorce, they may view the act as being morally wrong.

Another reason why some couples prefer legal separation over divorce is because it preserves certain benefits, including Social Security, pensions and health insurance. If a couple gets divorced, the other party may no longer receive his or her former spouse's benefits. Thankfully, however, benefits such as this are preserved through legal separation.  That is, a divorced person cannot typically keep a former spouse on their insurance after the divorce is granted, whereas health insurance coverage can usually remain the same if the couple decides to legally separate rather than divorce.

Arguably, the greatest reason why couples choose legal separation is the opportunity it offers to mend their marriage. Far too many couples today are eager to jump ship at the first sign of trouble. With a legal separation, couples can place space between themselves while continuing to work on their marriage.

About the Author

Jason M. Venditti

Jason is an accomplished litigator and trial attorney who represents individuals and businesses in a wide variety of matters in state and federal court, mediation, arbitration, and before administrative agencies. [email protected] 602.277.7602


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