January 22, 2020

What Are the Benefits of Legal Separation versus Divorce?


Relationships sometimes struggle and marriage doesn’t always work out the way a couple thought it would. That’s life. So, when that happens and you’ve reached a point of no return, what are your best options – legal separation or divorce? And what are the benefits of each (if any)? That’s what guest author and divorce attorney, Tricia D. Goostree, discusses in today’s post.

When you get married, you probably expect to be with your partner for the rest of your life.

Unfortunately, things do not always work out that way, and you may be facing the potential end of your relationship.

However, getting a divorce will mean the permanent, irrevocable end of your marriage, and you may not quite be ready to take that step.

Legal separation may provide you with an alternative, allowing you to remain married while you begin to separate your life from your spouse and determine whether you want to move forward with the divorce process.

A Kane County family law attorney can help you understand what you will need to address during a divorce or legal separation, and they can provide you with legal representation when negotiating a settlement or resolving disputes in the courtroom.

What Is the Difference Between Legal Separation and Divorce?

When you get divorced, your marriage will be dissolved, and you will no longer be legally united with your spouse.

Legal separation, on the other hand, allows you to remain legally married while living separately.

The process of getting a legal separation is similar to divorce: you and/or your spouse will file a petition for legal separation, and you will work to reach an agreement regarding how the legal, financial, and practical issues related to the separation will be handled.

You may need to address child custody, child support, spousal support (alimony), and the division of marital property.

At the conclusion of the process, a judgment of legal separation will be issued.

At any point in the future, either spouse may pursue a divorce.

Pros and Benefits of Legal Separation

With a legal separation, you will continue to be married to your spouse.

This could be a temporary arrangement while you attempt to work on your relationship and reunite with your spouse, or it could be a permanent solution.

Legal separation can benefit you in the following ways:

  • If you do not want to get divorced because of religious, cultural, or family reasons, you can remain married, even if your relationship has broken down beyond repair.
  • Because you will still be legally married, you, your spouse, and your children can maintain coverage on one spouse’s medical insurance plan.
  • You and your spouse can continue to file joint tax returns, which can provide you with financial benefits.
  • Remaining married may allow one spouse to receive a share of the other spouse’s Social Security or pension benefits.
  • The decisions made during legal separation can serve as the basis for a divorce settlement if you choose to end your marriage in the future.

Cons of Legal Separation vs. Divorce

While a legal separation will often work best as a temporary solution, it can have some drawbacks if it lasts for an extended length of time.

These can include:

  • Because you will continue to be married to your spouse, you cannot get remarried to a new partner while you are legally separated. You will need to get a divorce before you can marry someone else.
  • You and your spouse will continue to be financially linked. This means that if one spouse runs up large debts during the separation, creditors could potentially pursue repayment of these debts from the other spouse.
  • If either spouse’s financial situation changes during the period of legal separation, this could affect how matters will be handled if you choose to get divorced. These complications could lead to a longer and more drawn-out legal process than if you had pursued a divorce at the time of your initial separation.

Pros and Benefits of Divorce

While legal separation can serve as one solution, divorce may be the preferable option in some cases.

The benefits of divorce include:

  • Rather than being uncertain about the future of your relationship, you can permanently end your marriage, allowing you to move on and establish yourself as a single person. This can allow you to pursue future relationships without any lingering entanglements with your former partner.
  • Legally ending your marriage ensures that your finances will be completely separated from your ex-spouse, allowing you to establish your own credit and provide for your own needs.
  • You can make permanent decisions about how to divide the property and assets you and your spouse own. This will remove any lingering questions about issues such as who will pay for expenses related to your marital home.
  • You can put permanent arrangements in place for child custody. This can provide your children with a sense of consistency and routine, helping them understand that your marriage has ended and that they will be dividing their time between two homes going forward.

Cons of Divorce vs. Legal Separation

Even if your marriage has broken down beyond repair, you may not feel that you are ready for the finality of divorce.

Some of the reasons you may prefer legal separation instead of divorce include:

  • The divorce process can be lengthy and expensive. Both you and your spouse will be required to pay attorney’s fees, and you may need to make multiple court appearances as you work out the details involved in legally ending your marriage.
  • Disputes during divorce can become especially contentious. Because the decisions made will be permanent, you may find it more difficult to reach agreements than you would if you were planning to separate temporarily.
  • Following your divorce, your standard of living may be lowered. While spousal maintenance may be awarded to help ensure that both spouses can live comfortably, the reality is that you will be required to live on a single income, which may require you to cut back on the size of your home and the luxuries you can afford.
  • Divorce can affect your relationships with friends and family members. When your marriage ends, family friends may feel that they have to pick sides between you and your ex-spouse. If you or your children are close with your spouse’s family members, you may be unable to maintain the same relationships with them following your divorce.

Should I Get a Divorce or a Legal Separation?

Ultimately, the choice between legal separation and divorce will depend on your unique situation.

You will want to weigh the potential benefits and drawbacks of each option and determine how you can find a solution that addresses your needs, your goals, and your plans for the future.

Whether you know what approach you want to take when separating from your spouse or are exploring your options, you will want to consult with a skilled divorce lawyer.

** If you want to learn more about Tricia Goostree, please have a look at her bio below.

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Before you go …

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The best way to guarantee that you never to have to make the decision between a legal separation and divorce is to constantly work on your relationship and build one that lasts.

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Coping With Divorce, divorce, separation

About the author
Tricia Goostree

Tricia D. Goostree knew she wanted to be an attorney when she was 10 years old. Maybe it was Perry Mason reruns or L.A. Law episodes, but being an attorney seemed glamorous and exciting. She thoroughly enjoys courtroom work and runs Goostree Law Group with offices in Kane County, Kendall County, and Dupage County, Illinois.

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