What is the difference between a legal separation and a divorce?

A legal separation and a divorce are two distinct court cases and two distinct marital statuses. Legal separation does result in a final division of marital assets but the parties are still married and therefore cannot re-marry. If you have gone through a legal separation, but you later decide you want to divorce, you can petition the court to convert your judgment of separate maintenance to a divorce judgment.

The majority of couples that decide to file for a legal separation, versus a divorce, do so for religious or medical reasons. One advantage of a legal separation is that a spouse may be able to maintain health insurance through the other spouse’s employer. Be sure to check with the employer, human resources, or the health care company directly to ensure benefits will not be suspended in the event of legal separation. One of the other advantages of a separation is that you are not considered divorced for religious purposes.

However, some disadvantages of a legal separation are the costs. It is rare for people who are legally separated to reconcile though it does happen. So, if you’re in the majority, you may want to consider saving yourself some money (and aggravation) and simply file for divorce rather than separation because the likelihood of divorce is so substantial. Another disadvantage of a separation, is that you cannot re-marry, as you are still considered legally married. Additionally, when an action for separate maintenance is filed, the defendant has the option of counter-claiming for divorce. If the defendant counterclaims for divorce, the case will be converted to a divorce case. Thus, if you and your spouse do not feel the same way about a legal separation, you are better off filing for a divorce.

Although the decision to separate versus divorce is a very personal one, our attorneys would be happy to assist you with any questions that you may have. You may contact our office at (586) 264-3756.