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Legal separation versus divorce: key differences

The decision to divorce is a difficult and personal one. Sometimes, that decision is quick, with both partners willing to let the marriage go to move on. Other times, however, each can see benefits in remaining married even if they are no longer living together.

This post will discuss key differences between divorce and legal separation.

Marital relationship: In a legal separation, the marital relationship remains. This means the spouses are still legally married and are not free to marry other people. All rights – and responsibilities – bestowed as a result of marriage are still terminated, but each partner may not to marry someone else. Divorce terminates the legal status of “married.”

Health care/benefits: A legal separation may allow for the continuation of health insurance as well as other benefits like Social Security and pension funds that are payable to the recipient’s spouse. Divorce generally terminates such benefits. 

Debts and liabilities: When a couple is legally married in a community property state, they are each responsible for community debts. A legal separation terminates that responsibility. As in divorce, one party could be assigned a bigger portion of marital debts in exchange for certain assets, for example.

Decision-making authority: Legally separated but still married partners may retain financial and health care decision-making authority for the other. Divorcees, on the other hand, generally have no decision-making authority for a former spouse in the absence of a power of attorney and/or health care directive. 

Inheritance property rights: Divorce terminates most inheritance rights of a spouse, unless these rights are reaffirmed following the divorce. Parties who are legally separated have more inheritance rights than divorced parties. While a legally separated spouse who entered into an agreement to terminate property rights in the marriage cannot inherit through intestacy (just like a divorced spouse), a legally separated spouse who is named as a beneficiary of an account can still inherit the asset in the account. If a legally separated spouse is nominated as a fiduciary or beneficiary in the other spouse’s will or trust, this nomination is still valid, allowing the legally separated spouse to inherit and assume the fiduciary role. Generally speaking, legal separation does not automatically terminate joint ownership of property.

Reconciliation: Couples hoping to reconcile should strongly consider having a written separation agreement that defines the financial and parenting arrangements that will apply during the separation period. Obtaining a judgment of legal separation or divorce cannot be retroactively undone. Parties who have lived separate and apart, but who have not been subject to a legal proceeding, are more easily able to resume their marriage if that is desired.  

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