Divorce or Legal Separation: What’s the difference?
Often, and by often, I mean multiple times a week, potential new clients are calling about the differences between divorce and legal separation. Due to the call volume of this repeated inquiry, we thought it was in our and our potential new client’s best interest to write about this topic and discuss this topic in detail.
The truth is that there are not many differences between a divorce and legal separation. However, just because there are only a few differences doesn’t mean there isn’t a great disparity between the two. To begin our discussion on the topic, we will first discuss the similarities, and when applicable, discuss the differences, ok?
To start, when initiating either a divorce or legal separation the same initial paperwork (summons, petition, and response) and procedure are used. The few exceptions at this juncture are 1) in your petition, you check the legal separation box and NOT the dissolution box. And 2) the other party must consent/agree to the legal separation. Unfortunately, with legal separations your unilateral decision is not enough to be enforceable; you need both parties’ consent. However, contrary to a legal separation, your unilateral decision is enough to initiate and complete the divorce process. With a divorce, you have a RIGHT to end your marriage; you do not have the same right in getting a legal separation.
In moving forward through the next phase, the procedures in both remain the same. The same forms or declarations of disclosure need to completed; the same type of temporary orders will be requested; the same discovery is used, as well as settlement conferences, trials, judgments, appeals, and modifications.
As you can see, the process and the law is virtually the same thus far. At this point, minus a few exceptions, a divorce and legal separation are essentially the same. This means, ultimately, that the Court is still dividing your assets, debts and children (if applicable) just like a divorce. No different. You may be asking then, well, why is there a difference and why would anyone choose a legal separation over a divorce?
The biggest difference between divorce and legal separation is the status that comes with each. For instance, if you divorce from your significant other you are NO LONGER LEGALLY MARRIED and are free to re-marry. However, when you legally separate from your spouse you are STILL LEGALLY MARRIED and NOT FREE to re-marry.
There are many reasons people choose to legally separate and not divorce. However, there are a few prominent reasons people chose separation over divorce. The most prominent is for religious purposes. There are some religions that do not allow or discourage divorce, but the parties can no longer live and/or co-parent together. Therefore, to abide by their religious principles, their only other choice really, is to legally separate as they would still be married and would be able to operate independently.
Another popular reason some might choose to legally separate is for insurance reasons. Often, an insurance plan covers spouses only if they are married or they cannot afford the same kind of coverage as a single person.
The last common purpose for legal separation is because a parent does not want to feel legally reasonable for breaking up the family. Often, when this is the case, the parent that does not file will tell the children, “Your father or mother divorced me.” Obviously, for the parent that filed, it does not sound or feel good to hear that. As a result, it is one reason that people refrain from divorcing. However, the same could be said for legal separation.
There you have it, those are the major differences between legal separation and divorce and the reasons why people chose one over the other. Our hope at Sullivan, Krieger, Truong, Spagnola & Klausner is that this blog was educational, enlightening and helpful. If you or someone you know is contemplating either legal separation or divorce direct them to our blog at www.sullivankrieger.com or have them contact us at 1-877-877-1-LAW for any further inquiries regarding this topic.