Some states (not all) have an option for doing a legal separation in family court. This is an actual different legal status from being divorced or being married and it is confusing to some because many people use the term “separated” to describe to people what their relationship status is as they are going through a divorce, but they are not legally separated just separated physically.
In a legal separation, there are all the same orders about property division, spousal support, child custody, and child support that a divorce has, but you cannot remarry, and you can file taxes jointly together. The cost of legally separating is essentially the same as getting divorced because all the same orders are negotiated in both situations. So why would people want to do a legal separation instead of a divorce?
- Financial Boundaries: One of the number one causes of divorce is disagreements around money, particularly when there is gambling or overspending involved. Couples that are not sure about dissolving their marriage but want to separate finances and property to feel more secure that they are not going to be liable for further debt caused by their spouse, or be at risk of losing an important asset due to bad behavior on the part of their spouse can achieve this in a legal separation. Removing these concerns can give a couple time and space to work on deciding if they can move forward together as a couple and what that looks like.
- Religious Beliefs/Personal Observances: A person’s religious or personal beliefs rule divorce out as an option.
- The Desire to Retain Certain Benefits of Marriage: A few considerations that people assess are insurance benefits, ability to still file joint taxes, or other benefits (e.g. Social Security). These reasons need to be looked at very carefully.
- Check with the employer that insurance benefits can be maintained in the case of legal separation. Many times, they cannot.
- Have a professional do the analysis on the tax filing status differences. Is the difference material enough to get a legal separation rather than divorce?
- Contact the benefit provider (e.g. Social Security Administration) to understand what the difference in benefits would be in the case of legal separation versus divorce.
- Unsure about the Future of the Marriage but Want to Live Apart: Settling finances via a legal separation can provide the opportunity for a couple to test out living apart with financial independence for a period while working out their more permanent future. Again, sometimes taking the fear of how assets or custody would be settled allows space for a couple to focus on other aspects of their relationship.
Legal separation can be a very good option in specific situations. Some couples can live happily in a state of legal separation for many years. It is important to do the financial analysis and understand that a legal separation usually costs the same as a divorce and you can end up spending more if you decide to ultimately divorce. It is also important to think about how a future relationship partner may feel about you not being legally divorced. This is tough for some people to understand and be comfortable with so factor this into your decision as well.
