When to Consider Legal Separation vs. Divorce

Use these links to jump to different sections:

• Legal Separation Does Not End the Marriage
• Financial Decisions and Insurance Benefits of Legal Separation
• Jurisdictional Requirements in Family Law Disputes
• Consulting with a Lawyer to Decide if Legal Separation or Divorce Is Best for You

If you and your spouse are preparing to split up, you are certainly not alone. What you may not know is that a divorce is not your only option. Married couples also have the right to opt for a legal separation. While divorce legally ends a marriage and allows the former spouses to remarry, legal separation allows couples to live apart without terminating the marriage.

Legal Separation Does Not End the Marriage

Unlike divorce, a legal separation does not technically end a marriage. As such, you cannot remarry if you get a legal separation. To be able to remarry, you need to go through the divorce process. With a legal separation, you and your spouse are still married. And that is exactly what some people are looking for, says David L. Walther, a former family law attorney in Santa Fe, New Mexico.

“Legal separation is a far older remedy than divorce. Divorce wasn’t allowed [based on religious reasons for a long time],” says Walther. “It has relaxed a bit since then, but there are still some people who adhere to stricter religious prohibitions against divorce. There are others who have a personal conscience against it. So, a legal separation is an option because it does not sever the marriage bond, as is a post-nuptial agreement, where you set aside all the money [and determine] what support will be paid. You don’t even need to go into court for that, unless you need to enforce it.”

Financial Decisions and Insurance Benefits of Legal Separation

One of the practical advantages of a legal separation is that it allows parties to retain certain financial benefits. For example, an individual may be able to remain on their spouse’s health insurance policy if they get a legal separation. Other benefits, such as disability coverage, may also be accessible.

“You are allowed to stay on a spouse’s health insurance in a legal separation or with a separation agreement,” Walther notes. “In a divorce, you cannot, but there are other remedies like COBRA [Consolidated Omnibus Budget Reconciliation Act] that provide a spouse a certain amount of time to apply for continued coverage. So you can really get around that.”

Jurisdictional Requirements in Family Law Disputes

For a family court to have jurisdiction over your divorce case, you must live in the state for a certain period of time, as defined by state law. For couples who haven’t lived in a state long enough to establish jurisdiction but want to begin the divorce process, legal separation may be an option.

“To commence a divorce action, you have to be a resident of New Mexico for six months,” explains Walther by way of example. “So, when people come to us from other states, and they seek a divorce, the statute says you can commence an action for legal separation if you’re a resident. In that case, it’s not defined by a certain length of time, so you can commence an action for legal separation and, if you so choose, after six months, convert it to an action for divorce.”

The bottom line: A divorce ends a marriage. It allows the parties to make a clean break from each other and get a fresh start. In contrast, a legal separation allows the parties to get a court order that mandates their rights and responsibilities in regards to each other while they are still married but planning on living separate lives.

Consulting with a Lawyer to Decide if Legal Separation or Divorce Is Best for You

Whether or not a divorce or legal separation makes sense in your case depends entirely on your circumstances, financial position, religious beliefs, and objectives. “The chances of our firm recommending a legal separation over some other remedies is very slight unless you’re doing it for jurisdictional purposes,” Walther adds. “If you come and say, ‘I want a divorce,’ and we say, ‘You can’t get one for six months,’ with a legal separation, you can do it immediately. All you have to do is become a resident: Go rent an apartment and then go vote or apply for a driver’s license. That’s all you need.”

A divorce attorney can help you find the best option. Many divorce lawyers provide free consultations to learn about your case and provide legal advice. Alternatively, an attorney may count consultation fees toward the legal service. Ask informed questions, such as:

• What is your experience with divorce cases?
• How are child support, child custody, spousal support/alimony, and marital property division handled in legal separation?
• How will legal separation impact my health care and insurance coverage?
• What are the key differences between a legal separation agreement and a final divorce decree?

If you have questions or concerns about your legal rights or legal options, contact an experienced family lawyer for immediate assistance.