Divorce vs. Separation: Which One Is Right For Us?

When spouses decide to go their separate ways, there are a lot of difficult decisions to make. Often, many people assume that the next logical step is to get a divorce. However, it is worth examining other options available before dissolving the marriage. Sometimes, spouses choose to obtain a legal separation. A legal separation can be the final decision for a couple, or the separation agreement can be used as grounds for a subsequent divorce. Other times, people may choose to initially get a divorce. There are benefits and drawbacks to both methods, and the advice of an experienced divorce attorney is crucial to choosing the best option for you.

When a couple obtains a separation agreement or judgment, they are still legally married. There can be several benefits to this. A main concern for many people when separating from their spouse is health insurance, as it is often tied to a spouse’s employment. A legal separation allows you to remain eligible to be covered under your spouse’s health insurance plan. Similarly, marital status affects the ability to collect social security as a spouse. If your marriage was over ten years long, you can be eligible to collect social security as a spouse of your ex-spouse, as long as you have not remarried and are at least 62 years old. If you and your spouse were married less than 10 years, you can opt to get a legal separation and wait to get a divorce until 10 years have passed in which you were “legally married,” which would render you eligible to collect the benefits.

Aside from the financial benefits, there are emotional and spiritual factors that may make legal separation a better alternative. Legal separation may be more appealing if divorce goes against your religious beliefs, or if, emotionally, you may not be ready for the finality of divorce and may have hope to reconcile. Also, in the event you choose to get divorced later on, a separation agreement can make the divorce process speedier and less costly. The separation can provide grounds for divorce and most contested issues are usually already decided in a separation agreement (child custody, spousal support, division of property, etc.). It is important to note that separation agreements are presumed to be valid but a court can make modifications in the event of duress or fraud, or if a provision of an agreement is so inequitable or unfair so as to be unconscionable. Also, in agreements that make decisions related to children, the court always has the ability to modify those provisions if it finds they are not in the best interests of the child.

There are also some drawbacks to obtaining a legal separation instead of a divorce. First and foremost, with a legal separation, you are still legally married. Therefore, you cannot get remarried. You also cannot get equitable distribution of property in a separation action whereby a judge renders a judgment of separation. However, parties can enter into a separation agreement that deals with equitable distribution to resolve that issue. It is also important to be aware of how a separation is enforced. If you obtain a court-ordered judgment of separation, you will have the same enforcement remedies as you would in a divorce judgment. However, with a separation agreement, enforcement remedies are limited to those of a contract.

When deciding what is best for you and your spouse, there are a lot of factors to consider before dissolving the marriage. Whether you opt for a legal separation or a divorce, it is important to be represented by an experienced attorney. The divorce attorneys at Fass & Greenberg can help you weigh your options and guide you down the path that is best for you.