Understanding Divorce vs. Legal Separation

December 14, 2018 — by John Conger
Tags: Divorce

A gavel and a model of a house with two keysThe end of a marriage is often a difficult time made more complex by legal matters, like child custody and division of property. In such trying times, a divorce attorney can help protect your rights and financial future.

Most people understand that divorce is the legal termination of a marriage. However, most people don’t have a clear understanding of what a legal separation is and what it entails.

The attorneys of Shore, McKinley, Conger & Jolley, LLP explain the difference between divorce versus legal separation to help clients in the Stockton, CA area determine which is the right option for their family.

The Differences Between Divorce and Legal Separation

Both divorce and legal separation require each party to come to an agreement on factors such as child custody, child support, spousal support, and the division of property.

The primary difference is that, in a legal separation, the couple remains married and in a divorce the marriage is dissolved.

There are additional differences that may make one option more suitable for your needs than the other. Let's take a moment to consider these differences and why some choose legal separation while others choose divorce.  

Why Choose Legal Separation?

One of the biggest reasons people choose legal separation is to leave the door open for reconciliation. This can also be a good arrangement for couples who are religiously or morally opposed to divorce.

There are other benefits to legal separation, such as:

  • Preserves some financial and legal benefits: Legal separation can preserve some of the financial and legal benefits of marriage while allowing both parties to live separately.
  • Retention of health and government benefits: Legal separation allows for a spouse who is eligible for his or her spouse's government benefits, like certain Social Security benefits, retain such benefits. Health care benefits may also be retained in a legal separation, which is not the case in a divorce.
  • Preserves some property rights: Spouses who wish to preserve their property rights in the event of their spouse's death may also opt for a legal separation. In a divorce, property is completely divided and one spouse will not retain any rights to the property owned by their former spouse.
  • Retention of tax benefit: In some circumstances, staying married may present a tax benefit. In such cases, a legal separation may allow separated couples to retain their tax benefit.

Why Choose Divorce?

For many married couples looking to end their relationship, divorce is the desired option. Couples who have already tried to reconcile or who believe reconciliation is not possible, often choose a divorce.

Divorce completely dissolves a marriage, giving each spouse autonomy from the other.

Some reasons couples choose divorce over legal separation include:

  • They are able to remarry: Once a couple is divorced, both are legally free to remarry. Those who are legally separated remain married and cannot marry someone else.
  • They are no longer the next of kin: Divorce dissolves a former spouse's legal right as next of kin, which means a former spouse cannot make medical or financial decisions for the other. Those who are legally separated retain next of kin status.
  • Debts are divided: In a divorce, debts are separated so that each spouse is only responsible for the debts “assigned” to them. In a legal separation, both parties may be responsible for debts accrued during the marriage.  

Contact Our Experienced Divorce Attorneys

Whether you are considering a legal separation or divorce, the attorneys at Shore, McKinley, Conger & Jolley, LLP can help protect your rights. To schedule a consultation, please call (209) 477-8171.