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What Is a Legal Separation?


Legal separation describes a state that you can think of as being somewhere between marriage and divorce. The partners’ union is not formally dissolved, although legal separation can be a step toward accomplishing just that. Nor is legally separating the same as simply deciding to live apart while staying married, since legal separation requires a judicial decree. In a legal separation, spouses generally live separately and conduct most of their affairs independently of each other. However, they can’t marry someone else. The details will be spelled out in a legal document called a separation agreement. A financial advisor can help you evaluate the financial effects of changing marital status.

The Basics of a Legal Separation

Legal separation describes a situation in which a married couple lives apart while still having some rights and duties pertaining to the relationship. These rights and duties are spelled out in a legally binding decree issued by a judge in response to a petition. Separation is a more formal step than simply deciding to take a break from the marriage, but it’s less formal, less drastic and more easily reversible than getting fully divorced.

Legal separation is, however, similar to divorce in important ways. Both involve setting up separate living arrangements. Both require legal approval by a court and may include some costs for court fees and legal bills if attorneys are involved in negotiating or drafting the agreement.

The big difference is that legal separation doesn’t end the marriage. The partners can’t marry someone else unless and until they formally divorce. They still mark “married” on forms and can inherit from each other. A child born to a legally separated woman is legally presumed to be the offspring of the other spouse.

Reasons for a Legal Separation

what is a legal separation

Couples may have many reasons for legally separating. In some states, a period of legal separation is required before a divorce can become final. Couples may also legally separate as an alternative to divorce, especially if they want to avoid divorce for religious or cultural reasons or out of concern for the effects on children.

Legal separation offers a number of other benefits compared to divorce. For instance, a legally separated person may still be covered under the other person’s health insurance. Because it doesn’t actually end the marriage, legal separation can let people qualify for government benefits such as Social Security that require a marriage to last for a certain number of years. Legally separated people also can continue to enjoy federal income tax breaks extended to married couples.

Another benefit is that legal separation can be much less costly and stressful than divorce. And, while the divorce is final, legal separation can be reversed if the couple decides they want to start living together as married partners again. In fact, a legal separation may be used as a step to reconciliation by people who aren’t sure they want to go straight to divorce as a solution to their difficulties.

For couples who decide later that they do want to divorce, a legal separation agreement can be used as a template for a divorce agreement. Like a divorce decree, a legal separation decree handed down by a judge specifies both parties’ rights and responsibilities for paying bills, shouldering debt, child support, alimony and other matters. Settling these matters in advance can make an eventual divorce go more smoothly.

Legal Separation Disadvantages

Legal separation’s biggest limitation is that not all states allow it. In those that do, people who are legally separated are, while not still married, also not really single. Chiefly, that means they can’t marry someone else.

Although it’s likely to be less stressful than divorce, separation can still be costly and time-consuming. If they decide to divorce later, legally separated partners will have to expend more money, energy and attention. Meanwhile, they can still be responsible for the debts and other obligations of the marriage to the extent laid out in the separation decree.

Some benefits, such as maintaining insurance coverage, are not guaranteed, as some insurance plans may treat legal separation as identical to divorce and terminate coverage of separated partners. Finally, legally separated people still have to deal with their former partner during separation, rather than going their own way as completely independent persons.

The Bottom Line

what is a legal separation

Legal separation provides partners in a marriage with a way to live apart while still retaining the legal rights to benefits such as insurance coverage and government benefits otherwise available only to married partners. It can be a mid-way step to divorce or a pause allowing a couple to work out problems in a lower-stress environment and potentially reconcile. Legal separation requires a decree signed by a judge and is more significant than simply living in separate quarters. However, it doesn’t end a marriage on its own and legally separated people can’t marry again until an actual divorce is finalized.

Tips for Financial Planning

  • Consider talking to a financial advisor about the financial side of changes to your marital situation to help you understand how to protect your assets. If you don’t have a financial advisor yet then finding one doesn’t have to be hard. SmartAsset’s free tool matches you with up to three financial advisors who serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
  • Getting married changes many financial aspects of life and one of them is the way you pay your taxes. SmartAsset’s guide to tax effects of marriage describes five important ways that getting hitched will impact how much you’ll owe in taxes as a married couple.

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