What Is a Legal Separation?

Legal separation allows spouses to live separate and apart while remaining married. For some, it is the first step towards a divorce, while for others, it is a trial period to determine whether they will end their marriage.

There are some differences between being legally separated vs divorced that may cause you to lean towards one more than the other. Learn what a legal separation is to find out if it will work for you.

What does legally separated mean?

Legal separation means you're still married but you divide parental duties and joint property, assets and debts as you would in a divorce. Spouses lead separate lives but may continue to live in the same household.

Spouses become legally separated by order of the court. They have two options for getting this: have a judge decide the order's terms, or agree terms and just have a judge approve them.

If you have a judge decide, depending on where you live, you may need grounds for legal separation (e.g., cruel and unusual punishment) and evidence to prove the terms you propose are best. Since this can be a long process, it may be best to divorce instead if it's an option for you.

Legal separation vs divorce

The main difference between divorce and legal separation is that divorce permanently ends your marriage. If you're legally separated, you can reconcile. Also, the legal separation process is generally shorter than the divorce process, and it is easier to separate without a lawyer, saving you time and money.

Both legal separation and divorce are made official through court. If the terms of an agreement or court order are not followed, the parties can ask the court to enforce them.

Why would you get a legal separation instead of a divorce?

Now that you know what legal separation is, you may wonder why you'd get legally separated vs divorced. The following are some common reasons.

You're not quite sure you want to divorce

Filing for divorce is a big decision. You may still see hope in your marriage. Time apart may help you see things clearly and make a decision.

Divorce is against your personal or religious beliefs

Some religions don't allow spouses to divorce, and some people do not believe in divorce on a personal level. If either applies to you, you can turn to legal separation as a substitute for divorce.

You don't yet qualify for a divorce

Many states require parents to separate for one year before they can file for divorce — though they don't need to legally separate. Spouses will also need to have resided in the state for a certain length of time to divorce there. In the interim, a legal separation will give you legally enforceable arrangements to follow.

You want time to prepare for divorce

Legal separation gives you time to build your divorce case. You can use the time to gather documents (e.g., marriage certificate, birth certificate, social security cards), determine whether you want to hire a lawyer, decide what you'll ask for, etc.

Following the terms of your legal separation may help you figure out whether you want the same terms for your divorce.

You can't afford a divorce

Divorce is often expensive. Even if you represent yourself, you'll still pay hundreds to file your divorce papers (unless you qualify for a fee waiver). Filing fees for legal separation tend to be lower. Plus, many people who are legally separating forgo a lawyer, so they save there as well.

You want to prepare your children for your inevitable divorce

Legally separating may help your children adjust to postdivorce life. By the time you file for divorce, your child will know what it's like to live with their parents separately and follow a custody schedule. Separation can also help parents adjust to co-parenting.

Disadvantages of legal separation

Despite the advantages, legal separation has the disadvantage of putting spouses in an odd limbo between being married and single. This may make it difficult for spouses to discern boundaries, like whether they can be romantically involved with one another or others.

Also, if you cannot reconcile, legal separation becomes another step in the long divorce process.

What rights does a legally separated spouse have?

Separated spouses generally have the same rights as married couples since they are still married. For example, they usually still have access to the same joint health care plan.

Rights may vary based on the terms of their separation order. For example, one spouse may have sole rights to live in the family home and be the child's primary caregiver. You may also have the right to collect child support and spousal maintenance.

Use technology for your legal separation

The Custody X Change online app has all the tools you need to address the child-related parts of your legal separation.

With a parenting plan template, custody calendars, an expense tracker and more, Custody X Change is the perfect tool to lay out the child custody terms of your separation agreement — and to follow them.

Take advantage of our technology to make your legal separation go smoothly.