LEGAL GUIDE
Written by Avvo Staff | Aug 13, 2015

Legal separation vs. divorce: What’s the difference?

If you're considering a divorce or a legal separation, compare your options in the table below:

Legal separation vs. divorce
  Divorce Legal separation
Availability In every state. Every state EXCEPT Delaware, Hawaii, Iowa, North Dakota, Rhode Island, South Dakota, Texas, Vermont, and Wyoming
What it does Ends a marriage and returns both parties to a status of ‘single’ for all purposes. Severs legal ties between spouses without actually ending the marriage.
Legal documents A divorce settlement agreement lays out the specifics of the divorce and the obligations of each party. A divorce decree is the order a judge issues to finalize the divorce. A legal separation agreement covers most issues in a divorce agreement. A judge will issue a legal separation order once the legal separation agreement has been finalized.
Acceptable grounds for action None are required. Parties may cite “irreconcilable differences” to pursue the no-fault divorce option. A finding that the marriage is “irretrievably broken,” or parties mutually agree to live separately from one another.
Residency requirements All states maintain a residency requirement to obtain a divorce, ranging from 30 days to 6 months. Not all states maintain a residency requirement, but it can range from 60 to 90 days.
Process time Some states require couples seeking a no-fault divorce to live separately before filing for divorce. In general, an uncontested divorce will take the least amount of time. The process can be just as time-consuming as a divorce, since it deals with many of the same potentially contested issues of family, property, and financial support.
Cost Parties must pay filing fees and court fees for divorce paperwork. A contested divorce typically requires help from a lawyer. The average divorce costs between $15,000 – $20,000. Parties must pay filing fees and court fees for paperwork associated with legal separation. They may also seek legal help or hire a separation lawyer.
Division of assets and debts Parties may agree on how to divide assets and debts. If no agreement is possible, the court will divide assets either equitably or based on community property laws, depending on jurisdiction. Parties usually address division of assets and debts.
Alimony Based on factors like age, health, income and other assets, whether one spouse was a homemaker, who has child custody, and what assets each spouse is keeping. Not required by law, but parties may agree to support amounts. Some states allow for separate maintenance if one spouse failed to provide for the other during the marriage
Child custody and visitation Parties will mutually agree upon, or the court will order, a legal custody arrangement, physical placement (housing) for the child, and a workable visitation arrangement. Child custody and visitation are typically included. Legally separated couples are entitled to the same custody and visitation considerations as divorced couples.
Child support Included in the divorce decree. Included in the legal separation agreement in most jurisdictions.
Benefits Allows both parties to move on with their lives separately and, if they choose, remarry. Satisfies personal or religious convictions against divorce and allows spouses to maintain healthcare military social security benefits and certain tax benefits.
Remarriage Previously married people may remarry once a divorce decree is entered by the court. Separated couples cannot marry other people, as they are still legally married to each other.
Do I need legal help? A family law or divorce lawyer can help determine what is fair when permanently dividing assets, property and debt. While it's not required, a separation can help write an agreement and explain any state-specific laws.
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