What's the Difference Between Separation and Divorce?

Sometimes you just know, deep down in your core, that ending your marriage or putting it on hold is the best path forward. As difficult as it is to think about logistics during such an emotionally chaotic time, understanding nuances like the difference between separation and divorce can help light the path ahead.

We spoke with two experienced divorce attorneys who outlined the definitions of each and what the process may look like depending on which course of action you take. We're also covering topics such as the difference between legal separation and trial separation and how to broach this topic with your partner.

In this article:

• Meet the Experts
• What's the Difference Between Separation and Divorce?
• The Different Types of Marital Separation Agreements
• Why Choose Legal Separation vs. Divorce?
• How to Talk About Separation or Divorce With Your Partner

Meet the Experts

• Erin Kopelman is a divorce lawyer at LerchEarlyBrewer in Maryland.
• Sarah Intelligator is a divorce attorney based in California.

What's the Difference Between Separation and Divorce?

The key difference between legal separation and divorce is that, in the eyes of the law, a couple is still viewed as married in a separation.

"With a legal separation, neither spouse can remarry. Also, there are other ways that spouses who are legally separated may be tied under the law, including related to insurance, inheritance and tax," notes Erin Kopelman, a divorce lawyer at LerchEarlyBrewer in Maryland. "In addition, if a court order is entered regarding a legal separation, some states may not permit the parties to renegotiate terms if they move forward with a divorce."

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Every state has its own laws regarding separation and divorce. To that end, while all states have divorce, not all states allow for legal separation as an alternative to divorce.

"Even if your state has it, legal separation means different things in different states, and the criteria to qualify to obtain a legal separation varies between states," Kopelman says. "Often, filing for legal separation is similar to filing for divorce, and often the same issues are decided [at the time of filing]."

The Different Types of Marital Separation Agreements

When contemplating the end of your relationship, you'll come across different marital separation agreements. Each has its own advantages and disadvantages, so how you move forward becomes a personal decision.

What Is a Trial Separation?

A trial separation is not a legally defined status, nor does it require any legal intervention or formal paperwork filing. It's something the couple decides to do outside of court. In this scenario, a couple remains married during a trial separation and is still considered married by law. As such, all legal-related marriage rules still apply, including filing for taxes, sharing property, income, etc. They cannot remarry until a divorce is finalized.

Divorce attorney Sarah Intelligator says that during a trial separation, both parties can "determine whether they truly want to move forward with a legal separation and/or divorce, or if reconciliation is possible."

What Is a Permanent Separation?

A permanent separation is not a legally defined status, but rather a way a couple defines their personal situation, Kopelman says. In this scenario, both parties have agreed that reconciliation is unlikely, and probably do not live together. They may even date other people.

However, it's important to note that those in a permanent separation have not legally filed for separation or divorce. As such, they are still viewed as married by law, and all legal-related marriage rules still apply, including tax filing, income division and property sharing. Remarriage is not permitted until a divorce is finalized.

Legal Separation

A legal separation is a legally defined status that requires formal paperwork and legal intervention. In this scenario, the couple remains legally married by law, but certain issues—such as child custody, spousal support, debt allocation and property division—are legally resolved in court. They cannot remarry until the divorce is final.

"If, at any point in the future, they want to terminate the status of their marriage, they would need to file for a 'dissolution,' asking that the status of their marriage be terminated," Intelligator says.

She adds that legal separation often segues into formal divorce, which is why she only recommends pursuing this route if there's a good reason for it.

Why Choose Legal Separation vs. Divorce?

People choose legal separation vs. divorce for a handful of reasons. Some of these reasons include religion or culture, or because they aren't ready to move forward with a true divorce (in cases where there's some hope for reconciliation). Others are related to financial and legal reasons.

"Some people opt to have a legal separation because they meet their state's requirements to obtain a legal separation, but do not yet meet their state's requirements to obtain a divorce. In these cases, a legal separation is often a stopgap to divorce," Kopelman explains.

Additionally, she notes that some people opt to obtain a legal separation in order to maintain some legal relationship with each other for a specific purpose, such as estate or inheritance rights, insurance, or tax benefits.

How to Talk About Separation or Divorce With Your Partner

Before filing for legal separation or divorce, it's important to speak with your partner about how you're feeling and why you're considering these options. Marriage counseling can help address ongoing issues within your relationship with the hope of potential reconciliation and re-energized excitement about your future.

That said, while contemplating divorce is often emotionally overwhelming and can leave you feeling hopeless for your partnership, sometimes these discussions can serve as a catalyst for true change. Therapy can also help both parties gain acceptance about a future separation or divorce, which can make the transition easier.

There are cases, of course, where separation or divorce are the best path forward. In such scenarios, we recommend broaching this conversation when both parties are calm and your thoughts can be spoken without heightened emotions.

"If spouses are separating or divorcing and have children, I highly recommend working with a parenting coach on developing a parenting plan, a shared narrative of what to tell their children about the divorce and a plan of how to tell them," Kopelman says.

A mediator can also help you both reach resolution regarding big issues, such as asset division and child custody. Ultimately, the goal is to communicate with respect with one another, which will help you both navigate this difficult path forward.

Please note: The Knot and the materials and information it contains are not intended to, and do not constitute, legal advice and should not be used as such. You should always consult with your legal advisors about your specific circumstances. This information contained herein is not necessarily exhaustive, complete, accurate or up to date and we undertake no responsibility to update. In addition, we do not take responsibility for information contained in any external links, over which we have no control.