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The ending of a marriage is always a difficult decision, but choosing between a separation and a divorce can mainly be a legal determination. The fraught emotions that define resolving all the issues involved in separating your lives will be present. Understanding the key differences between a separation and a divorce will help reduce tensions and may make for a more amicable solution.

Legally, choosing to separate or divorce has a significant effect on your status. A separation does not fully dissolve a marriage, while divorce will end the marriage contract and leave you as distinct individuals in the eyes of the state.

State Laws

Divorce and separate law are different from state to state. For example, you should be aware if you live in a community or separate property state before starting to divvy up your possessions. An attorney can help explain these differences and their effect on your assets.

No matter whether you pursue a legal separation or a divorce, you will face questions of property rights, child custody and decision-making, debt servicing, and health care plans. Alimony, spousal support, child support, and other payment regimes may need to be negotiated or addressed. Finally, the permanency of a divorce stands in contrast to the possibility of reconciliation if you choose to sign a separation agreement.

What Is a Separation?

A separation can be simply choosing to live apart for a short period of time. Some couples may refer to it as giving each other space.

However, a legal separation is a more defined event. Typically, the couple goes to court and signs a separation agreement. This is a legal document laying out each spouse's roles, responsibilities, and financials during the separation.

Some legal separations end up being permanent; others pave the way for a full divorce, while still others are only temporary. Unlike divorce, legal separation is reversible.

Read more: Marriage Separation: Types and Rules

What Is a Divorce?

A divorce is the legal dissolution of a marriage. At the civil level, marriage is a contract between two people that binds them legally and financially. Choosing to get married carries ramifications for everything from your bank account to your liability if your spouse is sued.

When a divorce is finalized, each spouse is free to remarry. While legally separated, if someone enters into an additional marriage, they commit bigamy. Every state outlaws bigamy, so it is illegal to get remarried while permanently separated.

Beyond the dissolution and freedom to remarry, most divorces are similar to a legal separation. Your finances will be split, child custody arrangements will need to be made, and decisions on dividing debts will need to be formally completed. States have default rules for these decisions, though most can be changed through an agreement between the spouses.

Finally, if you reconcile with your former spouse after a divorce, there is no mechanism for getting back together except for formally remarrying them.

When To Choose a Divorce?

Every individual marriage will have its own pros and cons for choosing between divorce and legal separation.

First and foremost, if there is no chance of reconciliation, divorce is a more permanent choice. Because divorce means you are no longer next of kin, if you do not want your former partner having any say in your financial or medical decisions, divorce ends that possibility. Otherwise, if you become incapicitated, even a legally separated spouse maintains certain rights.

Beyond that, if one or both spouses desire to get married to someone else, the only option is to pursue a divorce due to bigamy laws.

Finally, it may make financial sense to choose a divorce. It will cost time and money to hire a lawyer to formalize a legal separation agreement. If you end up getting divorced anyway, this is money you could have saved by going directly for a divorce.


Start Ypur Divorce Agreement Now

When To Choose a Separation Agreement?

A separation agreement can be used to legally create space between you and your spouse. For some couples, separation is a trial run for a divorce. You will live apart, have your own financial responsibilities, and prepare children for a split-custody arrangement.

In other cases, due to health insurance policies, it is best for both parties to remain legally married. For example, if one spouse works and can cover their family on their health insurance, a divorce could leave the non-employed spouse without insurance. Usually, health insurance policies are unaffected by a separation.

Finally, there may also be tax benefits for remaining married that override other pros for seeking a divorce. Legally separated couples can still file taxes jointly.

If you are thinking about a separation agreement, LawDistrict.com has a contract maker template with easy step-by-step directions for creating a document tailored to your circumstances.


Get Your Separation Agreement Here

Separation to get a Divorce

There are two legal concepts for divorces in America: fault and no-fault divorces. Traditionally, one spouse had to provide a reason, or fault, for seeking a divorce. However, numerous states no longer recognize fault divorces and only have a no-fault divorce system.

Under a no-fault system, one spouse can seek a divorce without proving the other spouse's fault. Typically, these divorces cite a reason such as “irreconcilable differences.” Though every state now recognizes no-fault divorces, there are still some that require you and your spouse to live apart for a certain amount of time before divorcing.

In these states, you will need to seek a separation agreement to cover the period of time before you can legally divorce.

Differences and Similarities

The following is a quick wrap up of the vital differences and similarities between a divorce and a separation agreement:

Divorce Separation
Marital Status No longer married Still legally married
Property Rights No right to other’s property Property rights maintained upon one spouse’s death
Decision Making No longer next of kin Each spouse still has next of kin rights
Liabilities No liability for other person’s debts or lawsuits Possibly liability for spouse’s debts or lawsuits
Health Care Benefits No way to grant benefits to an ex-spouse One spouse can remain on another’s health care plans

If you are still deciding whether a divorce or a separation agreement is right for you, LawDistrict.com has resources for determining which is best. Our convenient contract templates can help you draft a personalized agreement today.

All Legal Documents

The ending of a marriage is always a difficult decision, but choosing between a separation and a divorce can mainly be a legal determination. The fraught emotions that define resolving all the issues involved in separating your lives will be present. Understanding the key differences between a separation and a divorce will help reduce tensions and may make for a more amicable solution.

Legally, choosing to separate or divorce has a significant effect on your status. A separation does not fully dissolve a marriage, while divorce will end the marriage contract and leave you as distinct individuals in the eyes of the state.

State Laws

Divorce and separate law are different from state to state. For example, you should be aware if you live in a community or separate property state before starting to divvy up your possessions. An attorney can help explain these differences and their effect on your assets.

No matter whether you pursue a legal separation or a divorce, you will face questions of property rights, child custody and decision-making, debt servicing, and health care plans. Alimony, spousal support, child support, and other payment regimes may need to be negotiated or addressed. Finally, the permanency of a divorce stands in contrast to the possibility of reconciliation if you choose to sign a separation agreement.

What Is a Separation?

A separation can be simply choosing to live apart for a short period of time. Some couples may refer to it as giving each other space.

However, a legal separation is a more defined event. Typically, the couple goes to court and signs a separation agreement. This is a legal document laying out each spouse's roles, responsibilities, and financials during the separation.

Some legal separations end up being permanent; others pave the way for a full divorce, while still others are only temporary. Unlike divorce, legal separation is reversible.

Read more: Marriage Separation: Types and Rules

What Is a Divorce?

A divorce is the legal dissolution of a marriage. At the civil level, marriage is a contract between two people that binds them legally and financially. Choosing to get married carries ramifications for everything from your bank account to your liability if your spouse is sued.

When a divorce is finalized, each spouse is free to remarry. While legally separated, if someone enters into an additional marriage, they commit bigamy. Every state outlaws bigamy, so it is illegal to get remarried while permanently separated.

Beyond the dissolution and freedom to remarry, most divorces are similar to a legal separation. Your finances will be split, child custody arrangements will need to be made, and decisions on dividing debts will need to be formally completed. States have default rules for these decisions, though most can be changed through an agreement between the spouses.

Finally, if you reconcile with your former spouse after a divorce, there is no mechanism for getting back together except for formally remarrying them.

When To Choose a Divorce?

Every individual marriage will have its own pros and cons for choosing between divorce and legal separation.

First and foremost, if there is no chance of reconciliation, divorce is a more permanent choice. Because divorce means you are no longer next of kin, if you do not want your former partner having any say in your financial or medical decisions, divorce ends that possibility. Otherwise, if you become incapicitated, even a legally separated spouse maintains certain rights.

Beyond that, if one or both spouses desire to get married to someone else, the only option is to pursue a divorce due to bigamy laws.

Finally, it may make financial sense to choose a divorce. It will cost time and money to hire a lawyer to formalize a legal separation agreement. If you end up getting divorced anyway, this is money you could have saved by going directly for a divorce.


Start Ypur Divorce Agreement Now

When To Choose a Separation Agreement?

A separation agreement can be used to legally create space between you and your spouse. For some couples, separation is a trial run for a divorce. You will live apart, have your own financial responsibilities, and prepare children for a split-custody arrangement.

In other cases, due to health insurance policies, it is best for both parties to remain legally married. For example, if one spouse works and can cover their family on their health insurance, a divorce could leave the non-employed spouse without insurance. Usually, health insurance policies are unaffected by a separation.

Finally, there may also be tax benefits for remaining married that override other pros for seeking a divorce. Legally separated couples can still file taxes jointly.

If you are thinking about a separation agreement, LawDistrict.com has a contract maker template with easy step-by-step directions for creating a document tailored to your circumstances.


Get Your Separation Agreement Here

Separation to get a Divorce

There are two legal concepts for divorces in America: fault and no-fault divorces. Traditionally, one spouse had to provide a reason, or fault, for seeking a divorce. However, numerous states no longer recognize fault divorces and only have a no-fault divorce system.

Under a no-fault system, one spouse can seek a divorce without proving the other spouse's fault. Typically, these divorces cite a reason such as “irreconcilable differences.” Though every state now recognizes no-fault divorces, there are still some that require you and your spouse to live apart for a certain amount of time before divorcing.

In these states, you will need to seek a separation agreement to cover the period of time before you can legally divorce.

Differences and Similarities

The following is a quick wrap up of the vital differences and similarities between a divorce and a separation agreement:

Divorce Separation
Marital Status No longer married Still legally married
Property Rights No right to other’s property Property rights maintained upon one spouse’s death
Decision Making No longer next of kin Each spouse still has next of kin rights
Liabilities No liability for other person’s debts or lawsuits Possibly liability for spouse’s debts or lawsuits
Health Care Benefits No way to grant benefits to an ex-spouse One spouse can remain on another’s health care plans

If you are still deciding whether a divorce or a separation agreement is right for you, LawDistrict.com has resources for determining which is best. Our convenient contract templates can help you draft a personalized agreement today.

All Legal Documents