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Choosing Legal Separation or Divorce - Common Situations

What Is Legal Separation?

With a legal separation married individuals remain married under the law but opt to live separately--just as with an informal separation. Legal separation, however, may also include court orders that specify responsibilities of each spouse, such as child custody.

What Is a Divorce?

With a divorce a marriage is legally, and entirely, ended.


When Should Legal Separation be Considered?


  • Uncertainty: If a couple is not certain they want to end their marriage, a legal separation may be a good starting point. In the event that the couple decides to reconcile in the near or distant future, a legal separation can be reversed, whereas the same is not true regarding a divorce.  With a separation, there is no need to “remarry” because the marriage was never dissolved.

  • Personal Preference or Religion: For some couples, a legal separation is most appropriate when neither spouse plans to remarry in the near future, or they simply do not wish to fully dissolve the marriage.  Sometimes couples choose a separation because they wish to live separately, but want to maintain the covenant vows made on their wedding day.

  • Children: The idea of a divorce can be difficult for children. Some parents choose to legally separate and postpone a divorce until after their children leave the home or until their family is better equipped to deal with the significant lifestyle changes that come with a divorce.

  • Necessary Division: For couples that reside in states with lengthy separation periods prior to a divorce, a legal separation is a good option. During the separation period, the couple can resolve matters related to the marriage such as the division of property. This will prevent the couple’s assets and debts from being further intertwined during the separation period.

When Should Divorce be Considered?

  • Certain Breakdown: If a couple is certain their relationship is over and they have no plans to reconcile they may consider a divorce their best option.

  • Dating and Remarriage: When a couple is legally separated they are not free to remarry. If either party is planning to date or remarry soon after separating, a divorce is may be their best option.  In addition, some states consider relationships, dating or intercourse with someone other than your spouse during the legal separation an affair or adultery. State laws regarding adultery vary and repercussions punishment can be severe or costly. For this reason, it may be best to choose a divorce if either party intends to date.


Which States Recognize Legal Separation?


Many states do not recognize legal separations. For instance:


  • South Dakota and North Carolina do not have or recognize a formal process for legal separation. If you are a resident of either state you will need to file for divorce.  

  • Georgia, Massachusetts, Michigan, Mississippi and Oklahoma do not offer a legal separation process but they do have similar separate maintenance actions that divides the couples’ assets and other matters while leaving the marriage intact.  

  • New Jersey, Rhode Island and Virginia refer to their process as Divorce from Bed and Board.

  • Maryland and West Virginia refer to their process for legal separation as a “limited divorce.”