Both a divorce and a legal separation create formal distance between you and your spouse. The difference between a divorce and a legal separation is that when a couple divorces, their marriage is formally ended. In a legal separation, while the couple no longer lives together, they are still technically married. They must still mark that they are married on forms, have the right to inherit from each other, and cannot legally remarry. Typically, a couple will treat a legal separation as a “trial” separation as they decide whether or not to pursue legal action.  

Why get a legal separation?

Sometimes couples feel like divorce is on the horizon, but are not ready to take that step yet. This is where a legal separation comes in. Legal separation is a great opportunity for couples to test the waters of divorce. During a legal separation, couples no longer live together, yet they are still legally married. This allows couples the opportunity to address important issues in their lives, such as custody and financial hurdles while still remaining technically married. Many couples benefit financially from this setup.

What are the financial benefits of getting a legal separation?

During a legal separation, a couple may still file their taxes jointly and continue preserving those benefits. Couples may also remain on each other’s health insurance plans until they can find other options for healthcare. You are also still entitled to Social Security and pensions that provide payments to a living spouse. Some couples prefer to stay legally separated for this reason instead of getting a divorce. Either way, a legal separation is a good way to work out financial issues between each party.

How do I get a legal separation?

A legal separation occurs when a court formally determines your relationship as separated. Not all states offer legal separation, so check with your state’s laws to determine whether or not this is an option for you. In Utah, a legal separation is called “separate maintenance”. One or both parties have to have lived in Utah for 90 days before filing a petition for separate maintenance with the local court. You must provide a legal reason for your request. Utah law requires the judge to wait a minimum of 30 days before taking your request. After that, the court may require you to take at least one mediation session. Then, you will negotiate the terms of your separation.

Separation to get a divorce

Based on certain grounds, some states require legal separation before a divorce will be granted. This time period is pre-determined by a judge but is usually anywhere from six months to a year. In other states, a legal separation can become the actual grounds for a divorce. You create a separation agreement, live under it for a period of time, and then use that separation agreement as a divorce decree.

What is a separation agreement?

A separation agreement is an agreement containing all of the issues you and your spouse need to resolve prior to getting a divorce. This may include the division of marital property, child custody, and child support. By signing a separation agreement, couples are able to have full control over the outcome of their divorce proceedings. You must live apart for least one year, but after that, a separation agreement can be converted into a divorce decree and no official court hearing is generally required.

If you are considering divorce, but want to test the waters first, consider obtaining a legal separation. This will allow you to work through any issues, set up a separation agreement if desired, and work through financial hurdles as you split up assets. A legal separation places couples in control of the details of their potential divorce.