Legal Separation vs. Divorce
Legal separation and divorce establish certain legal rights and responsibilities, and the legal issues that can be addressed by the court are similar. However, there are certain differences between these two statuses.
In a divorce, the marital relationship is severed. The couple generally does not have any legal relationship to each other, outside any responsibilities that they have toward joint property or their children. The spouses may no longer be eligible for protections provided to married couples, such as tax filing status, health insurance, retirement benefits or other rights. The spouses are able to marry other people if they so choose.
A divorce is a permanent change in the marital status of the spouses. In a legal separation, the parties are still legally married. They may be able to retain certain marital protections and benefits. The spouses cannot legally marry another person during this period of separation, even if they have been separated for years.
Some states limit the amount of time that a legal separation is valid. For example, Utah only recognizes a legal separation for up to one year, so any support issues would have to be addressed separately after this point, or the parties would have to move toward a divorce. In some states, a divorce can only be granted after a certain waiting period.
Additionally, a spouse may have to wait a certain amount of time before being able to file for divorce if there are not other grounds for divorce, such as incarceration, drug use or infidelity. For legal separation actions, there may not be such waiting periods. The spouse may not have to prove specific grounds, but in some states they still do. Courts may be more willing to make orders involved in separation agreements with less delay or less need for court hearings because the consequences are not considered permanent.
Some states only allow legal separations if the parties enter an agreement together. A divorce can be granted even if one spouse does not want the divorce.