February 3, 2020

What is the difference between legal separation and a divorce?

Difference Between Legal Separation & Divorce | SchindelSegal, PLLC

While marriage can be a romantic celebration of a couple’s love, it is also a legal contract. An official marriage recognized by the government entails a marriage license or certificate, which is then made public record. By getting married, spouses are afforded some benefits while taking on particular responsibilities.

A marriage contract plays a significant role in the difference between legal separation and divorce―two available options for married couples who want legal recognition that they no longer live together. While certain matters, such as division of property, spousal support, child support, visitation, and custody are treated similarly, there are several key differences between these two paths.

 

Dissolution of Marriage

A divorce dissolves a marriage while a legal separation does not. Though a legally separated couple may not be living together, they are still viewed to be married in the eyes of the law.
This distinction is important as some spouses may not want to split due to moral, religious, or financial reasons, but still, want legal boundaries established in official documents. Choosing to separate rather than divorce can function as a protective measure against liability for a partner’s financial or legal troubles.

 

Government and Tax Benefits

Being that a legally separated couple is still viewed as married, they can take advantage of certain government and tax benefits, including the following:

  • Joint filing of taxes and applicable deductions
  • Eligibility for the other spouse’s social security
  • Eligibility for spousal military benefits

However, the availability of these benefits to legally separated couples varies by state.

A divorced couple, having dissolved the marriage contract, cannot file jointly. The right to benefits through the Uniformed Services Former Spouse Protection Act or social security benefits can get complicated as the marriage must have lasted at least ten years. Additionally, in the case of social security, the receiving spouses may not get remarried before they reach the age at which they can begin taking benefits.

 

Insurance

Legally separated spouses may still be listed as beneficiaries on their partners’ health insurance. This can be essential to individuals who have chronic illnesses or who don’t have access to employer-provided insurance. Divorce typically eliminates this option.

 

Bank Accounts and Credit Card Debt

During a divorce, assets are divided between the two parties in a way the court deems fair based on each spouse’s earning ability and the value of jointly held property. This includes liquid assets such as jointly held deposit accounts. While a legal separation also specifies the division of property, access to jointly held accounts may be preserved depending on what the state allows.

Access to credit established before separation may be preserved for both parties. However, legal separation often means that individuals are not responsible for debt incurred by their partners after separation―this debt will not be considered if the couple decides to divorce. This can be crucial protection for individuals’ credit, which may be ruined if partners incur debt with the assumption that their ex-spouse will be financially responsible for a portion. Once a couple divorces, the court often divides up jointly incurred debt responsibilities as deemed fair.

 

Finality

Perhaps the most significant difference between legal separation and divorce is finality. A couple may ask a Judgement of Legal Separation be dismissed, in which case the boundaries outlined in the legal document no longer apply and the couple retains all benefits and responsibilities of marriage. A divorce, however, ends a marriage completely and the two parties must remarry to regain the benefits and responsibilities mentioned above.

 

Know When to Contact A Divorce Attorney

If you are in need of a divorce attorney, the Law Offices of SchindelSegal, PLLC can help. We are dedicated to helping couples and families navigate the difficult process of divorce and the many decisions it entrails. Learn more about your options by calling us at (952) 358-7400 or contacting us online.