Why would you choose legal separation over divorce?

When you and your spouse decide to part ways, you have the option to get a divorce, legal separation or annulment. If you are like most couples, your situation does not qualify for an annulment, leaving you with the former two options.

According to FindLaw, legal separation and divorce are similar in a few fundamental ways. This leaves many people to wonder, why would a couple choose legal separation over a more formal and final divorce?

Similarities between divorce and legal separation

To many couple’s surprise, a legal separation entails many of the same legal formalities as a typical divorce. For example, if you and your spouse have minor children together, you or a judge will need to decide on issues pertaining to child custody, visitation and child support. If you own significant property together, the judge will want to see that you and your spouse came up with a fair distribution plan, or he or she will come up with one for you. If applicable, the judge may also devise a separation maintenance order for spousal support.

Benefits of legal separation over divorce

At a glance, it appears that divorce and legal separation are same in all but the name. However, there are a few distinctions between the two, many of which actually make legal separation more attractive for many couples:

  • Marital Status: A legal separation allows you and your spouse to maintain your legal marital status, which comes with several key benefits, a few of which you can explore below.
  • Retention of Benefits: Divorce terminates each spouse’s rights to the other’s benefits, such as health care, certain social security benefits and retirement benefits. Because a legally separated couple is still technically married, however, each party continues to have rights to the other’s welfares.
  • Property Rights: Legal separation allows you and your spouse to retain the rights to each other’s property upon either of your deaths. Divorce, on the other hand, terminates these rights.
  • Decision-Making Capacity: All states consider spouses — even if they are married just by paper — next of kin. As next of kin, you and your spouse would still have the capacity to make financial and medical decisions for each other while separated.

Perhaps the greatest benefit of a legal separation over divorce, for many couples, is the ability to reconcile without having to go through the marriage process a second time. If you and your spouse are unsure if divorce is what you want, legal separation may be the right option for you.