Overview: What's the Difference Between Legal Separation and Divorce?
A quick and easy way to explain a legal separation is that for most practical purposes, it is the same as a dissolution of marriage (commonly called a "divorce"). In both proceedings a petition is filed, the opposing party is served, temporary orders can be entered, and final orders can be entered by agreement or by conducting a trial. In both proceedings all relevant issues are resolved: the division of property and debts, child custody and visitation, child support, spousal maintenance, name change and restraining orders. The only big difference is that after a divorce the parties are no longer married; after a legal separation they are. For that reason, neither party is free to re-marry after a legal separation.
If the Difference Is So Small, Why Pick One Over the Other?
When a marriage breaks up, one or both spouses usually want to sever all ties; they don't want to remain married. Washington State is a "no fault" state. In a divorce, neither party has to show that the other party did something wrong to get a divorce. Neither party can force the other to accept a Decree of Legal Separation if the other party wants a divorce. For that reason alone, by far the largest percentage of separating couples get a divorce. However, in some cases a legal separation is the appropriate choice. There are three main reasons for choosing a decree of legal separation over a decree of dissolution of marriage: (1) Sometimes the parties simply cannot accept the emotional impact of being divorced; (2) some couples hold strong religious beliefs that prohibit divorce; and (3) in some cases there are important financial reasons to remain technically married.
Some Financial Reasons to Prefer Legal Separation over Divorce
The financial reasons to prefer legal separation usually have to do with the requirement of the legal status of being married. For example, many military benefits are available to a spouse, but not to an ex-spouse: e.g., PX and Commissary privileges; access to other on-base services like car repair or eye glasses; and medical benefits. Many civilian medical plans from employment also drop coverage upon divorce. Modernly, access to good medical insurance has become so important that many couples choose legal separation solely for the reason that one spouse with a serious illness or disability would otherwise lose coverage.
The basic requirements for jurisdiction, service of the summons and petition, the response to the petition, and default are basically the same for a legal separation and a divorce. A divorce requires a minimum 90 day "cooling off" period before final orders can be entered, even if the parties agree on all issues. The courts do not require this wait for a legal separation, although there has been some controversy about that issue. Once a decree of legal separation has been entered, it can be converted later to a decree of dissolution of marriage; however, the parties must wait 6 months before doing so.
This AVVO Legal Guide is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney who wrote this Legal Guide, and no attorney-client confidentiality. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Guide is general in nature and may not apply to the factual circumstances described in your question. The applicable law and the appropriate advice may be different in the State or States where the relevant facts occurred. For definitive legal advice you should independently consult an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. Your comment to this Legal Guide may be used for promotional or educational purposes. (C)Bruce Clement