Separating vs. Divorce

by Beverly Bird
Both separation and divorce allow you to move on, but separation doesn't sever all ties.

Both separation and divorce allow you to move on, but separation doesn't sever all ties.

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Whether to legally end your marriage or just establish a separate life from your spouse is a highly personal decision. Depending on your goals, there are pros and cons to each option. Divorce is final, whereas separation enables you to take your time about ending your marriage while still protecting your interests.

Residency Requirements

Divorcing means meeting your state's residency requirements, and some can be lengthy. For example, in both Ohio and Minnesota, you must reside in the state for six months before you can file. Not all states require you to meet a residency requirement to file for separation, however. Spouses can enter into a legal separation and set the terms for custody, support and property division while they wait out the required residency duration to be able to end their marriage entirely.

Legal Process

Not all states recognize the concept of legal separation, and even among those that do, it can go by different names. For example, in New Jersey, it is a divorce from bed and board. In Maryland, it is called a limited divorce. In some states, your separation is legal when you and your spouse negotiate and sign a separation agreement because such an agreement is a binding contract. Other states require that you file a petition or complaint for separation just as you would file a petition or complaint for divorce. In these states, the legal processes for separation and divorce are much the same. You can either reach a settlement agreement just as you could if you divorced, or the court can decide issues for you at trial. If your breakup is contested, you probably won't save much time, stress or money filing for separation instead of divorce, and if you separate without an agreement or court order, some courts may consider that you are still viably married. Nothing governs your assets, debts, support or custody terms while you live apart.

Insurance Issues

If you're covered by your spouse's health insurance, divorce either ends your right to coverage or the premiums will jump sky high to keep you on the policy. This may not be the case with a separation, however, although it depends on the insurer and your state's particular laws. Some companies treat a legal separation the same as divorce. If you have ongoing health issues, look into the terms of your spouse's policy or check with an attorney.

Retirement Issues

In all likelihood, unless you agree otherwise in a settlement agreement, you and your spouse will share your retirement benefits when you divorce or you'll divide them as part of the terms of your legal separation. Social Security isn't as flexible as other retirement plans, however. You can collect on your spouse's work record if his benefits are greater than yours, but only if you remain married for 10 years or more. For example, if you divorce after seven years, you lose this right. If you separate after seven years, you don't. With a legal separation, you can defer your actual divorce for a while until you reach the 10-year milestone, but in the meantime, you'll still have the protection of a court order regarding support, property and custody.

Post-Separation Assets and Debts

The date you and your spouse begin leading separate lives can be pivotal to both divorce and legal separation. It usually creates a line between assets and debts that are considered marital and the separate debts and assets of each spouse. In some states, this is the case even if you don't file for divorce or legal separation right away – moving into separate households establishes your intent to end your marriage for purposes of valuing marital property later. If you sign a separation agreement with your spouse, you can specifically state that debts acquired after this date are the responsibility of the spouse who incurred them. If your agreement doesn’t include this language, and depending on where you live, you might still be responsible for your spouse's debts after you part ways. Divorce unequivocally ends joint responsibility for debts going forward, although it doesn't bind third parties such as creditors regarding joint debts taken out while you were married.