Legal separation vs divorce: What’s the difference?

Whether you are unsure of whether you want to truly end the marriage, need a breather, or are otherwise in limbo between marriage and divorce, this post is for you:

• Separation vs divorce: What’s the difference?
• When you should consider separation instead of divorce
• How to get a legal separation

Separation vs divorce: What’s the difference?

Some states require divorcing couples to legally separate for a set period of time. Other states, including Texas, do not offer legal separation as an option at all — you are either married or not-married.

If you are 100% ready to end the marriage, you are ready to divorce. However, there are some financial and legal advantages to both being legally separated as well as divorced.

Trial separation vs. legal separation

Trial separation: Any couple can separate at any time, for any reason. Typically trial separation refers to one spouse moving out under a mutual agreement the couple is deciding whether or not to divorce.

Legal separation: Most states allow for, or require, a legal separation, which is a binding agreement that states that while you are legally married, you are also legally separated. A legal separation can protect spouses from financial liabilities of the other spouse, as well as give them benefits like health insurance as well as taxes.

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Separation vs. divorce

Reasons people stay legally married, but attain a legal separation include:

• Uncertainty about ending the marriage
• Health insurance that one spouse can get for free or lower cost through his or her spouse's employer or business
• Staying married for a certain period longer allows one spouse to be eligible for the other’s pension, Social Security, or other retirement benefits
• One or both spouses want to avoid divorce for religious reasons
• Tax reasons

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Is separation good for a marriage?

Some experts say that if a separation is done well, with the intent of working through difficulties, separations can be good for relationships and keep marriages from ending in divorce.

This seems counterintuitive when a marriage is in trouble and relations are fragile. Most of us believe that when we feel our spouse slipping away from us, we should merge more, get as close as we can, and do more ‘to make the marriage work.'

The thought of creating distance at such a time instills a great deal of fear of losing control of your spouse and your relationship. This option is especially challenging if the bond between the two of you has been weakened by a betrayed trust. But employed carefully and skillfully (and usually with some type of professional support), this tool can be quite effective in bringing two people closer together.

Susan Pease Gadoua L.C.S.W., Psychology Today

How do you know if it’s time to separate?

If you and your spouse share the goal to save the marriage, or are at least open to it, a trial separation could be successful if it includes:

• You are still communicating.
• You are both engaged in couples counseling or other third-party support
• There is a general sense of trust. Neither is suspicious of financial or sexual infidelity that is not already being addressed.
• You can still co-parent relatively amicably and address the needs of the kids during this trial time

Otherwise, depending on the laws of your state, it may be time to separate and start divorce proceedings or hunker down to wait out your state’s required waiting period.

Learn more about toxic marriages and unhappy marriages, and how to decide whether to leave your marriage.

How long should a marriage separation last? Is separation required before divorce?

Some states require a minimum waiting period before divorcing, and others mandate separation periods before the state will grant a divorce.

34 states have no specific statutory requirements for waiting periods prior to filing for divorce:

• Alabama
• Alaska
• Arizona
  California
• Colorado
• Florida
• Georgia
• Hawaii
• Idaho
• Indiana
• Iowa
• Kansas
• Maine
• Massachusetts
• Michigan
• Minnesota
• Mississippi
• Missouri
• Nebraska
• New Hampshire
• New Mexico
• New York
• North Dakota
• Oklahoma
• Oregon
• Pennsylvania
• Rhode Island
• South Dakota
• Tennessee
• Texas
• Utah
• Washington
• Wisconsin
• Wyoming

• Arizona: There is no separation requirement if you do not have a covenant marriage, but if you do, couples must separate for at least one year from the time the court orders a legal separation. If there is no separation order, you must live separate and apart for at least two years.
• Arkansas: Couples filing a no-fault divorce must live apart from each other for at least 18 months before filing for divorce.
• Delaware: The law requires spouses separate for at least 6 months before filing for divorce.
• District of Columbia: If the separation is agreed-upon by the spouses, the couple must live separately for at least 6 months before filing for divorce. If your spouse moved out and you didn't agree to it, you must prove you've lived separately for at least one year before you qualify for divorce
• Illinois: Spouses must live separate and apart for at least 6 months before you qualify for divorce
• Kentucky: You must live apart from your spouse for at least 60 days before the court will grant a divorce.
• Louisiana: If you have a covenant marriage, you must live separate and apart for at least 2 years, unless the court grants a legal separation first. If you are legally separated, you must wait to divorce at least 1 year, and 18 months if you have minor children. For non-covenant marriages, the law requires spouses to live separate and apart for at least 180 days without minor children, or 365 days with minor children.
• Maine: You and your spouse must live apart for at least 60 continuous days before filing for divorce.
• Maryland: The court may grant a divorce if you and your spouse live separately and apart for at least 12 months without interruption before filing for divorce.
• Montana: Unless you can prove to the court that “serious marital discord” exists in your marriage, couples must live separately for at least 180 days before filing for divorce.
• Nevada: The law requires spouses to live separately for at least one year, or if you file a no-fault divorce alleging “incompatibility,” the law doesn't require a separation period.
• North Carolina: You must live separate and apart for at least one year before the court can grant a divorce.
• South Carolina: The state requires spouses to separate for a minimum of one year before filing for divorce.
• Vermont: Spouses must live separate and apart for at least 6 months.
• Virginia: If you have minor children with your spouse, you must prove to the court that the spouses lived separate and apart for at least one year. Couples without children can reduce the separation period to 6 months.

What should you not do during separation?

The list is long, but if you are serious about saving your marriage start here:

• Withdraw large sums of money from joint accounts, spend lots of money (shared or otherwise — should you eventually divorce you’ll need all the cash and credit you can find) or run up lots of debt.
• Make any major decisions, including large purchases (real estate, businesses, investment portfolios), unnecessary career changes, plastic surgery.
• Quit your job, get a lower-paying job, sell or sabotage your business or otherwise intentionally lower your income.
• Date, including casual sex. What to know about dating while going through a divorce
• Speak poorly or publicly about your spouse, including to the kids.
• Change your will or estate plan
• Change or cancel your life insurance
• Announce on social media your relationship status. That is hurtful to your spouse, your family and loved ones who are also struggling with this time of limbo. Plus, it is just tacky.

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Advice for separating couples

Gadoua says these are typically required for couples to have a successful separation period:

• Support of a professional third-party, like a therapist — including online couples therapy from a platform like BetterHelp.
• Take care of your mental and physical health. 5 tips for Self-Care Sunday
• Clear and reasonable expectations about responsibility and time sharing for the kids
• A clear goal — a stronger marriage, or just a step towards divorce? Both spouses need to be on the same page.
• Regular communication. If you are both silently seething in your respective homes, a separation will not nurture a better partnership. 30 tips for co-parenting
• Educate yourself about the divorce process. A separation is a great opportunity to become prepared and understand what your options are for dividing property, building your career and income, managing debt and a budget.
• Think about what kind of divorce you want. One with lots of expensive lawyers and fighting? Or an uncontested and amicable divorce, mediation or collaborative process?
• Follow legal advice on divorce, including a divorce checklist.

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When you should consider separation instead of divorce

Reasons people stay legally married, but attain a legal separation include:

• Uncertainty about ending the marriage
• Health insurance coverage
• Staying married for a certain period longer allows one spouse to be eligible for the other’s pension, Social Security or other retirement benefits
• One or both spouses want to avoid divorce for religious reasons
• Tax reasons

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Does a husband have to support his wife during separation?

Legally, you don't have to support one another during a separation. However, if it is likely that there will be spousal support, child support, a division of assets and other arrangements post-divorce, it makes sense to start a semblance of these payments during a divorce. For example, if the higher-earner will be responsible for alimony, and the lesser-earner will rely on that alimony to maintain the marital home, then it makes sense for an estimated alimony payment to start during the divorce. That way, the house will not go into foreclosure and therefore will benefit the credit rating and assets of both spouses.

Also, doing so is an act of good will that can carry forward in healthy co-parenting and allowing both parties to move on.

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How to get a legal separation

Can you be legally separated but not divorced? 

Yes, some people stay legally separated for many years. Some downsides to an endless separation include:

• Neither of you can remarry
• Your estate will likely go to your spouse in the event of a death
• It keeps both parties and your families in emotional and legal limbo
• There may be some tax and legal disadvantages to staying connected this way