Legal Separation vs. Divorce: What's the Difference?

Both legal separation and divorce involve a division of responsibilities such as child custody and property rights. However, there are significant distinctions between the two, and it is important that you understand the benefits and drawbacks of each before making a legal decision. In today’s blog, we discuss these differences and other factors a divorce court will take into consideration during the separation process.

Legal Separation vs. Divorce

What Is a Legal Separation?

A legal separation is a court order that mandates the rights and duties of a couple while they are still married but living apart. As in a conventional divorce proceeding, the court decides the following in the proceedings for legal separation:

  • Separation maintenance
  • Child custody
  • Child visitation
  • Property division (based on the couple's situation and how it relates to the property)

Legal separation appeals to couples who don't want to divorce but want to live separately and want matters such as child support, child custody, and property division clarified legally. Typically, those interested in legal separation may be couples who foresee permanent separation rather than a temporary trial separation. Common reasons a couple might wish to separate rather than divorce might include the financial benefits of remaining married (e.g. tax incentives) and religious beliefs which may conflict with divorce. The grounds for legal separation typically mirror state grounds for divorce and can include the following:

  • incompatibility,
  • abandonment,
  • adultery, and
  • cruelty.

Note that a court approved separation doesn't end a marriage. The marriage still legally exists following a legal separation, and the separation order merely clarifies the rights and obligations of each side.

What Does a Divorce Do?

A divorce goes one step further than legal separation and terminates the marriage. As with the case of legal separation, the court will decide on child custody, child visitation, and child support among other previously shared responsibilities.

Regarding property division, the divorce court will divide the property of a marriage, though most states will exclude from this division any property that was acquired prior to the marriage or that was acquired via inheritance. Non-community property states like Georgia will inquire into the couple's individual financial circumstances, financial plans for the future, and other relevant matters in attempting an equitable distribution of the property.

What’s the Difference Between Separation and Divorce?

There are a few key differences between a separation and divorce, including:

  • Health care benefits – legal separation allows for the retention of health care and other benefits including certain Social Security benefits that terminate with a divorce.
  • Marital status – you retain your marital status in a legal separation, meaning that you're not free to marry another; if you're divorced, you can remarry.
  • Decision-making – spouses are considered next of kin and can still make medical or financial decisions for the other; divorced spouses aren't considered next of kin.
  • Debts/liabilities – spouses may still be responsible for the debt of the other in a legal separation; in a divorce the debts are handled during the dissolution process.
  • Property rights – legal separation preserves each spouse's legal rights to property benefits upon the death of the other, but a divorce extinguishes these rights.
  • Remarriage/reconciliation – divorce cannot be undone; reconciliation is easier with legal separation.

On the point of reconciliation, a couple who has legally separated and wants to get back together does not need to get married again. Rather, they simply need to submit a request to resume the marriage to the court. On the other hand, if a couple permanently divorces, they must remarry again if they choose to resume their marriage.

Seek an Experienced Lawyer in Gwinnet County

If you are interested in separating from your partner, it is important to understand two of your primary options – legal separation and divorce. Both sides have benefits and drawbacks, and it is advisable that you seek an experienced divorce lawyer for knowledgeable legal guidance in this process. Let the legal team at Daniels & Taylor help; put experience and knowledge on your side today.

Contact our firm at Daniels & Taylor, P.C. to get started on your case.

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