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Legal Separation vs. Divorce

When pertaining to ending an existing marriage, there are three terms that come into play: divorce, legal separation, and annulment. Here, we will talk about legal separation and divorce and discuss their similarities and differences. If you want to learn more about annulment, read our blog post about divorce vs. annulment.

Essentially, legal separation and divorce are very similar, especially in terms of court procedures. In both cases, the effects would include matters like child custody, child support, allocation of parental rights and responsibilities, and the division of marital property. 

However, the main difference is that in legal separation, the couples are physically separated, i.e. not living together, but their marriage is still considered existing. On the other hand, the marriage is completely dissolved after a divorce. 

Key Differences Between Legal Separation and Divorce

As we mentioned earlier, the main distinction is that in legal separation, you and your partner are still considered as married in the eyes of the law despite living apart. In divorce, you no longer retain your marital status, and are therefore free to remarry. 

Other differences include:

  • Property rights. In legal separation, the property rights of each spouse are retained upon the death of the other. In contrast, divorce extinguishes these rights. 
  • Decision making. Because the spouses are still considered married in legal separation, each of them still has the authority to make major decisions for the other. This is not true in divorce. 
  • Health care insurance and other benefits. Many insurance companies do not view legal separation as a complete end to a marriage. Therefore, you and your spouse can still carry on health insurance while legally separated. 
  • Debts and liabilities. Couples who are legally separated may still be liable for the debts of the other. In divorce, the debts are settled during the dissolution and division of marital assets.

Which one should you file?

Because the effects of both legal separation and divorce are necessarily the same, you can file any of the two. This is especially true if you are only concerned about drawing the line between you and your partner in terms of parental rights and responsibilities or assets. 

Legal separation, however, can be more beneficial, especially if you and your ex are still working through personal or financial issues affecting your marriage. It recognizes that you are separated but since the marriage is still existing, you can still exercise your marital rights and responsibilities. 

Ultimately, legal separation can be seen as a strategic action that enables you to reap the benefits of the marriage without actually having a relationship with your partner. However, for all intents and purposes, the effects of both proceedings are the same.

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Senior Associate

Colorado Springs

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