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What is the Difference Between Divorce and Legal Separation?

Divorce and legal separation divide everything between two spouses except for actually dissolving their marriage.

A legal separation decree states the spouses will live separate and apart from each other, keeping the marriage intact. A decree for legal separation divides property and debts, it provides for child and spousal support, and legal and physical custody of the children, among other things. The decree is typically titled “Decree of Legal Separation.”

With a divorce, the decree includes the same things: division of property and debts, provisions for child and spousal support, and provisions for the legal and physical custody of the children. A divorce decree, however, explicitly dissolves the marriage of the spouses, and the former spouses are eventually free to enter into another marriage. The decree will typically be titled “Decree of Dissolution of Marriage” or “Divorce Decree.”

The key difference with a legal separation is that the spouses are married but live apart, versus with a divorce where the spouses’ marriage is dissolved. Because legal separation is a legal action like divorce, and legal separation does almost the exact same thing as divorce, there is no financial benefit in choosing a legal separation instead of a divorce.  Further, if spouses are legally separated they will need to still file for a divorce if they eventually decide to dissolve their marriage.

So why would someone choose legal separation over divorce? One reason is that spouses may choose legal separation in hopes of repairing their marriage but need to live apart while doing so for whatever personal reasons they may have. During the process of repairing the marriage and living apart, legal separation protects the marriage by keeping the marriage intact, but it also protects the children and the spouses. Legal separation protects the children by a court ordering child support and clarifying legal and physical custody of the children. Legal separation protects the spouses by a court ordering which spouse is responsible for what debt and which spouse has the right to certain marital assets. If spouses reconcile, they can apply to the court to set aside their Decree of Legal Separation and remain married.

Another reason spouses may choose legal separation over divorce is religious reasons. Since divorce may have religious ramifications to people’s faith, spouses may choose to legally separate instead of divorce. Legal separation provides all the protections divorce does.

There may be other personal reasons to choose legal separation over divorce. Again, the primary difference is the legal state of the marriage itself, so the choice depends on your personal preferences and what is bets for the parties.  If you have questions on legal separation or divorce, or just want to speak with the family law attorneys at Berkshire & Burmeister, please give us a call or contact us today!

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