Differences between divorce and separation

Legal Separation vs. Divorce

Recently updated on February 24th, 2022 at 04:50 pm

When you and your spouse have made the difficult decision to end your union, you have two options. You can either get divorced or get a Legal Separation Order from the Court.  There are several important differences between divorce and legal separation, and reasons why people may decide on one option or the other.  In most cases, people choose divorce over legal separation.  To be blunt, while we get a lot of calls asking about legal separation, it is rarely something our clients ultimately pursue.  Furthermore, there is not a big difference in cost between the two options.  That said, there are circumstances where a legal separation may better fit your particular needs.  We still do a few legal separations each year for clients.  Each case is different and must be evaluated in terms of your life circumstances and your goals at the moment.

What Is a Divorce?

A divorce is an end to your marriage where you cut all legal ties.  A divorce is final.  You will enter an Agreement with the Court that details custody of minor children, parenting plan, college support, who will provide medical insurance, whether you will require life insurance, and how you will divide marital property including real estate, personal property, retirement accounts, bank accounts, debts, and any other marital assets.  After a divorce, the parties are free to remarry if they so desire.

What Is a Legal Separation?

In this blog, we are discussing a Legal Separation that is obtained through an Order of the Family Court.  This is different from an “informal separation” where you and your spouse live separate lives, but you remain legally married.  In an informal separation, you may continue to live together or apart, you may continue to share financial expenses or divide financial obligations, and, if you have minor children, you may institute a parenting plan and agree upon child support.  In a Court-Ordered Legal Separation, you may also continue to live as in an informal separation, but these circumstances are set forth in a legal Agreement that is entered in the Court.  Your Legal Separation Agreement is much like a Divorce Judgment (Decree).  It is just that you remain “legally married.”

When Is a Divorce the Better Option?

When you are certain you want to end your marriage and there are no financial, religious, or other reasons to remain legally married, you may want to consider a divorce.  It will save you the time and money of getting a legal separation, only to pay for a divorce later.  You will also need a divorce if you plan to eventually remarry.

When Is a Legal Separation the Better Option?

There are several reasons that some people decide to be legally separated instead of divorced.  In a legal separation, you will enter into a Legal Separation Agreement that includes all the provisions in a Divorce Agreement.  A Legal Separation Agreement is legally binding.  The differences between a legal separation and a divorce are as follows:

  • In a legal separation, you can still make decisions for one another.
  • In a legal separation, you may be able to continue coverage on your spouse’s health insurance. HOWEVER, this is a case-by-case determination, and you MUST verify that you can continue on coverage in a legal separation.  This was one of the primary reasons that spouses chose legal separation over divorce.  However, it is now very rare that insurance companies will permit a spouse to remain on a health insurance policy following a legal separation.
  • In a legal separation, you will likely have spousal inheritance rights in case of the death of a spouse.
  • You may need to remain married to vest in Social Security spousal benefits. Marital rights under Social Security vest after 10 years of marriage.
  • You may need to remain married until a spouse vests in a pension.
  • You may want to remain married for religious reasons.
  • You may need to remain married for Community Spouse rights in a Title XIX situation.
  • You may need to legally separate certain parts of your life, but you are not ready to be divorced.

The IRS deems Court-Ordered Legal Separation with a Maintenance Order (Legal Separation Agreement) to be the same as divorce for tax filing purposes.  Under a Court-Ordered Legal Separation, you cannot file as Married Filing Joint.  There are circumstances where this may vary, and you will need to review your particular circumstances with an accountant.  There may be different rules in different states regarding State Income Tax filing status when legally separated.

You may or may not be shielded from your spouse’s debts in a legal separation.  However, this is also the case in a divorce.  This largely depends on how your Divorce Agreement or Legal Separation Agreement is drafted and how your debts are held.  Divorce Agreements and Legal Separation Agreements can both define how you and your spouse will divide marital debt.

In most states, including Connecticut, there are procedures that must be followed to convert a legal separation into a divorce, or, on the other hand, to dissolve a legal separation.  To end a legal separation and remain married, the legal separation would have to be withdrawn in the Court.  To convert a legal separation into a divorce, you will need to file updated Financial Affidavits and an updated Agreement.  This will depend on the length of time between the Legal Separation Order and the divorce.  The longer the time period, the more likely that issues will arise that may involve litigation.

It is important to remember that either spouse may convert a legal separation to a divorce at any time.  This is usually a right and not dependent upon objection by the other spouse.

If you are having difficulty deciding between a divorce and a legal separation, our experienced Connecticut family law attorneys can help.  At McConnell Family Law Group, we can further educate you and your spouse and help you determine the right process for your particular needs.  To schedule an appointment in one of our offices located throughout Connecticut, contact us at: (860) 266-1166; or (203) 344-7007; or by visiting www.mcconnellfamilylaw.com.

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