Legal Separation vs. Divorce: Choosing the Right One for You

Flicker, Kerin, Kruger & Bissada LLP

If your marriage is failing, you may be faced with choosing between a divorce and a legal separation. Both processes are a serious commitment and indicate that your relationship is over. However, they have some critical differences that can affect your future.

Understanding these differences is essential when you decide to legally end your marriage. To ensure the best possible outcome, you should educate yourself on the benefits and drawbacks of both divorce and separation. Below are the critical differences between the two and guidance on determining which method will work best for you.

What Does a Divorce Mean?

A divorce is the standard way to end a marriage for good. When you get divorced, several things occur:

  • The court declares that you are no longer legally married, returning you to the legal status of “single.”
  • Your finances are officially split from your partner, and your marital assets are divided equally between the two of you.
  • If you have underage children, child custody is determined, and a parenting plan is put in place.
  • If necessary, the court may order one of you to pay the other spousal support (alimony), child support, or both.

After a divorce, the only things legally tying you to your ex-spouse are any support orders put in place and any property you choose to share ownership of. For instance, if you started a business with your spouse, you may retain joint ownership after your divorce is finalized.

What Does a Legal Separation Mean?

During a legal separation, your finances are definitively split from your partner’s. You work to divide your marital assets, and future financial obligations or income will not be considered joint property. Just as with a divorce, custody and support orders will also be determined.

Unlike a divorce, a legal separation doesn’t actually end your marriage. According to the law, you are still technically married to your spouse. A separation can be reversed at any time, returning a couple to their fully married status. It can also be easily converted into a divorce since the time-consuming tasks are already complete. This is both the biggest draw and the biggest drawback of legal separations.

Many people hesitate to end their marriage for one reason or another. For example, religious couples may not feel comfortable ending their marriage. Other spouses may not be ready for the finality of a divorce. In that case, a separation can be a steppingstone that allows couples to decide whether they actually want to permanently end their marriage.

Divorce vs. Legal Separation: Similarities and Differences

Going through a divorce and a separation can feel very similar. In both cases, you’ll need to determine the division of your assets, what support is necessary, and what will be done about child support. The significant difference is the status of your marriage itself. Here’s how the two processes compare with each other:

 DivorceLegal Separation
Marriage endedYesNo
RemarriageDivorced people can remarrySeparated people cannot remarry
ReversiblePermanentReversible
Child support determinedYesYes
Alimony awardedPotentiallyPotentially
Child custody decidedYesYes
Asset division handledYesYes

A legal separation means you’re still married but accomplishes every other aspect of a divorce. This may be a benefit if you’re hesitant or can’t get divorced for some reason. However, it can be a significant negative if you genuinely want to end your marriage and move on.

How to Choose the Right Way to End Your Relationship

Both separations and divorces play important legal roles and help people take control of their relationships. If you’re not sure which method is best for you, you can ask yourself the following questions:

  • Are you sure about ending your relationship? This seems like a simple question, but it often isn’t. If you’re confident about wanting to end your marriage, then a divorce is the clear solution. However, if you have financial disagreements but still want to remain married, or if you otherwise still care for your spouse, getting separated can be a better solution.
  • Do you think you may want to remarry someday? If you want to pursue a future permanent relationship, a divorce is a good idea. When you’re legally separated, you’re still technically married and cannot marry another person. If you’re open to future relationships, getting a divorce can help prevent legal complications from popping up later.
  • Do you have any religious concerns about divorce? If your spiritual beliefs prevent you from getting divorced, then a legal separation might be the right option. You can receive all the benefits of ending your legal relationship without technically ending your marriage. You won’t be violating your faith, but you will be able to move on with your life.
  • Are there any other objections or barriers to a divorce? In some instances, divorcing may not be possible. For example, you need to live in California for at least 6 months and in the County for 3 months before you can file for a divorce. If you don’t meet the residency requirement, you may be able to file for a separation instead. You can then convert the separation to a divorce once you meet the appropriate criteria.

After answering these questions, you should have a clearer idea of which method will work better for you.

Don’t Let Confusion Delay Your Life

No matter why you want to end your relationship, delaying will only make things more complicated. Both legal separations and divorces are time-tested ways to legally split your life from your spouse’s and start the process of moving on.

If you’re still unsure which one is best for you, you should consult with an expert. Reach out to the experienced team at Flicker, Kerin, Kruger & Bissada LLP to discuss your situation. They can help you decide the best way forward and support you during the process. Schedule your consultation today so you can stop struggling and begin the process of moving on.

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