Marital Status: Difference Between Separated and Divorced

By Christine Funk, J.D.

Marital Status: Difference Between Separated and Divorced

By Christine Funk, J.D.

When a couple contemplates ending their marriage, their options are limited by the facts and circumstances of the marital breakdown and the laws of the state. In some states, such as Minnesota, a couple can file for a no-fault divorce without any waiting period. (Note: this does not include the residency requirement, which calls for at least 180 days of living in the state.) In other states, such as Florida and Maryland, a waiting period of six months to a year is required to obtain a no-fault divorce. However, a divorce can be granted on fault grounds without a waiting period.

Man and woman sadly looking away from one another

In states that have a waiting period, a separation of some kind is mandatory. Some states have a specific set of requirements for a couple to be considered legally separated, but other states do not. Consequently, it is a good idea to consult a lawyer within the jurisdiction when determining how to proceed with separation and divorce.

Understanding Separation as a Legal Process

When a couple separates in anticipation of divorce, they can write up a separation agreement. This is true both in states where legal separation is recognized and in states where it is not. A separation agreement is a legally binding contract. It addresses things such as who is responsible for debts, who enjoys the benefits of the assets, how the children will be cared for, and whether either party must pay child support or alimony. A separation agreement details almost all of the same topics a divorce decree would address. However, you should not presume that the court will automatically accept the terms of a separation agreement as the terms and conditions of the divorce.

During a separation, the parties are still married to each other. They enjoy the legal rights and responsibilities of marriage. They can inherit from each other if one of them dies during the separation without a will. Barring legal documents to the contrary, a separated spouse still has the responsibility of making critical life decisions if their spouse becomes incapacitated. Separated spouses can reunite. They may have to notify the court that the separation agreement is no longer valid, if they have filed one.

Understanding Divorce as a Legal Process

Once a couple is divorced, they are no longer legally married. They no longer stand to inherit property without a legally executed will or trust. They do not have decision-making capabilities in the case of an incapacitation, unless specifically identified in legal documents as the decision maker. Once divorced, both parties are bound by the divorce decree as it relates to the division of property and debts, as well as child custody and support issues. However, they are free to make decisions about remarriage — either to each other or to other people.

Benefits of Separation

The benefits of separation vary depending on the people involved. In some states, it's a necessary part of the process in legal no-fault divorces. However, for many families, it's a long-term solution. Families that don't divorce can remain covered by the same health insurance policy. Couples who are married can continue to file their taxes as a married couple. Some couples choose to remain married for religious reasons.

Benefits of Divorce

Divorce affords both parties to the marriage the freedom to marry someone else. It also legally severs them from the choices their spouse makes regarding opening new credit cards or engaging in tortious conduct.

When a couple separates, they are still legally married. Sometimes a separation occurs for emotional reasons, and sometimes it's mandatory before a divorce. Divorce severs legal ties (except those set forth in the agreement) and allows both parties to remarry.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.