What Is a Legal Separation?
A legal separation allows married couples to live independently while setting clear financial and parenting boundaries. Unlike divorce, it maintains the marriage's legal status, which might benefit couples unsure about permanently ending their relationship. This separation can simplify financial arrangements, aid in religious adherence, or provide stability for minor children.
Reasons to Choose Legal Separation Over Divorce
Although the reasons for seeking a legal separation vary, there are some common ones worth noting. Some religions prohibit divorce, so legal separation provides benefits similar to divorce without compromising religious beliefs. Also, those unsure of their marital future may opt for a legal separation, hoping for a reconciliation.
Despite the pain, legal separation can be a sensible choice when divorce doesn't make sense. For example, a legal separation can be temporary, while a divorce is permanent. Some couples legally separate when trial separations don't work. This may be their last attempt at saving their marriage.
Couples with minor children often find legal separation better for their kids than divorce. Although the parents function as a separate unit, the family may remain together, maintaining stability and order, for the most part. Moreover, many parents find that their children are better able to adjust to a divorce if they legally separate first.
Legal separation is often simpler and cheaper than divorce. With a legal separation, it's possible to retain health and retirement benefits.1 Also, for those who want a divorce, a legal separation is required in some states before a judge will grant one.
Legal Separation Benefits: Retaining Entitlements
Reaching a 10th anniversary is a monumental occasion, but it is also a milestone that affects future benefits. For couples deciding to part ways, a legal separation may keep benefit entitlements intact. For example, military spouses must remain married for a decade to take advantage of the benefits provided by the Uniformed Services Former Spouse Protection Act.
For instance, military spouses gain benefits from the Uniformed Services Former Spouse Protection Act by being married for 10 years.5 If your spouse will draw significantly more Social Security than you will in retirement, it is beneficial to remain married for a minimum of 10 years so you can draw a larger sum by drawing on your spouse's Social Security retirement benefits.
Exploring Different Types of Marital Separation
Legal separation isn't the only option for couples who prefer to separate instead of divorce.
Trial Separation
A trial separation is an informal, temporary decision for couples, unlike legal separation. As the name suggests, couples use this approach when they aren't entirely certain about the separation and want to test whether or not a separation is right for them.6
Permanent Separation
Permanent separation is considered by some to be the stage preceding a legal separation. Unlike a trial separation, the couple has at this point decided to separate permanently and assume there is no hope for reconciliation.6 However, for whatever reason—perhaps due to health insurance issues, costs, or just inertia—the couple has not taken action to mark the separation in court.
Comparing Separation, Divorce, and Annulment
Though a divorce marks the official end of a valid marriage, an annulment treats the marriage as if it had never happened. When a judge grants an annulment, it indicates that the court does not recognize the arrangement as having been a legally valid marriage.
There are a number of scenarios in which a person can request an annulment. Among them:
- The marriage was a result of force, fraud, or physical or mental incapacity.
- The marriage took place when one or both spouses were under the influence of drugs or alcohol.
- The marriage took place when one or both spouses were already married.
Understanding the Difference Between Separation and Divorce
In most cases, the legal termination of a marriage will result in a divorce. Unlike a separation, a divorce is permanent. This means both spouses are free to remarry. However, depending on the state where the couple lived and how long the marriage lasted, a divorce also means the termination of economic benefits, such as shared insurance, assets, and liabilities.
Ultimately, electing for a divorce over a legal separation or vice versa is a personal choice. Factors such as the cost of divorce, religious beliefs, the shared benefits that come with remaining married, any time-frame thresholds (such as a 10-year anniversary for military couples), as well as simple uncertainty about permanently ending the marriage, may make separation the correct choice.
Necessary Steps for Filing a Legal Separation
Every petition for legal separation must include the following information:8
Law Help NY. “Understanding Legal Separation.” Select "What should my separation agreement say?"
- The legal names of both spouses
- The date and location of the marriage
- The names of any children or dependents of the marriage
- The proposed custody arrangement of the children
- The date when—and addresses where—the couple began living apart
- Any child support arrangement, as well as any other financial responsibilities to which both parties have agreed
Potential Drawbacks of Choosing Legal Separation
Legal separations are serious and shouldn't be rushed into. While not as well-known and extreme as a divorce, they still can be expensive, complicated to execute, create further friction between couples, and introduce obligations that may be complicated to reverse.
Some believe couples should either resolve their differences or divorce. In a legal separation, couples are legally apart but still married. This leaves them in a kind of strange middle ground. For example, with this status, spouses cannot remarry, as they would be able to do with a divorce. And if legal separation does lead to divorce, the couple will end up spending more money on court and legal fees, etc.
Do You Need a Lawyer to Establish a Legal Separation?
It is entirely possible to obtain a legal separation without hiring a lawyer. Most state and/or county courts have the necessary separation petition forms available for free on their websites. You and your spouse must complete all the necessary forms and submit them to the court clerk.9
Which States Allow Legal Separation?
Most states allow legal separations; exceptions include Delaware, Florida, Georgia, Maryland, Massachusetts, Michigan, Mississippi, Pennsylvania, South Carolina, and Texas, which instead offer alternatives.2
How Much Does a Legal Separation Cost?
If both parties are in agreement, don't contest the separation, and do not hire a lawyer to create the separation petition, the cost of legal separation will only amount to the court filing fee, usually around $80 up to over $400 depending on the state.10 In Queens County, New York, for example, the cost of filing a separation petition is $210.9 The separation becomes much more expensive if there are issues that need to be resolved through the use of a lawyer.
How Long Does It Take to Get a Legal Separation?
The length of the separation process can vary depending on the state and the complexity of the agreement, but the process typically takes around six months to a year.
The Bottom Line
A legal separation is a court-ordered arrangement that allows married couples to live apart while remaining legally married, providing a structured alternative to divorce. Common reasons for pursuing legal separation include religious beliefs, financial considerations, or the welfare of minor children. While it maintains certain benefits of marriage, it also imposes legal obligations similar to divorce. Couples considering this arrangement must carefully outline responsibilities and agreements during the process to ensure clarity and compliance.
Remember that legal separation can preserve benefits, such as Social Security or certain military entitlements, if the marriage has lasted over 10 years. For those contemplating legal separation, understanding state-specific regulations and potential costs is essential, as the process can be straightforward or complex based on individual circumstances.
