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What are Legal Differences Between Divorce and Separation?

April 5, 2021

When a marriage is in trouble, a couple can decide to try to work things out.  They may also agree to live apart or to divorce.  Although this sounds like a simple choice, it is usually far from simple.  Both the decision to live separate lives and taking the steps to carry out that decision can be complex and involve a degree of doubt and uncertainty.

Choosing to live apart or to seek a divorce involve differing degrees of permanence and different steps.  Each has its own advantages and disadvantages.  Before a couple makes decisions on separation or divorce, it is important to understand the differences and likely consequences.

Those considering ending their marriage are urged to contact an experienced divorce lawyer for assistance in the process.

What is a Trial Separation?

If a couple is unsure of how they would like to proceed, they may decide to live apart for a while before making a decision that is irreversible.  This is often referred to as a trial separation and does not involve the courts.  Details of who pays which bills, where any children will stay, and how they will be taken care of, are all decided by the spouses. 

A trial separation involves a shared commitment to leave options open while handling all the existing financial and other responsibilities.  This involves trust, good communication, and will work only if the spouses are essentially in agreement as to how the practical aspects of life will be handled during the trial period.  Although a trial separation may have some legal implications later, there is no legal mechanism to make the terms enforceable beyond mutual agreement of the parties. 

A trial separation can be financially risky.  Financial decisions made by one spouse will bind both.  Incurring excessive debt, making risky investments, and purchasing expensive items, even if made without the other spouse’s knowledge or consent, will be the financial responsibility of both parties.  If there are concerns about terms of the separation being honored, a trial separation may not be the best choice.   

What is a Legal Separation?

In a legal separation, the spouses are free to live separate lives.  It is more formal than a trial separation and involves entering into a separation agreement that is filed with a court and becomes part of a court record.  The agreement provides details on how the separation is to be achieved.  It divides property, assigns debt obligations, defines arrangements for caring for children including custody and child support, defines terms of alimony, and ends the financial connection between spouses.  The agreement is filed with the court and becomes enforceable.

Legal separations have some flexibility. If conditions change, the couple is permitted to petition a court to modify the terms of their separation.  They can also choose to transition the separation into a divorce, also by application to a court.  It is also possible to reunite at any time. 

Divorce

In a divorce, a marriage is terminated through a legal proceeding.  Both legal separations and divorces involve negotiating an agreement on all matters of finances and child care and must be filed with the court.  Once filed, the agreement becomes mandatory and enforceable.  The time and cost of these proceedings are about the same. 

When Does a Legal Separation Make More Sense than Divorce?

A major consideration for couples is whether they believe there is still a chance that they could work things out.  Although reversing a legal separation does involve seeking court approval and incurring additional legal costs, it is still possible.  Once a couple get divorced, there is no going back. 

Another consideration is religious beliefs.  Some religions discourage or outright prohibit divorce, and individuals who subscribe to these religions may want to leave their spouse but not their church or their community.  A legal separation can achieve this end.

Other considerations make getting a legal separation more beneficial than divorce are based on maintaining certain financial benefits and security that are not available after divorce.  A legal separation enables one spouse to remain eligible for health insurance coverage from the other spouse’s job.  It also allows for the spouses to continue to file taxes jointly, which in some cases results in an overall tax benefit. 

Another consideration is that spouses are entitled to certain Social Security and/or military benefits after being married for at least 10 years.  A legal separation allows accrual of time married so that the spouse can become eligible for the benefits. 

The right to inherit property is also retained in a legal separation, although there can be ways to limit these rights through other legal instruments.  In addition, earnings or acquisition of property after legal separation is considered by a court to be separate property if there are future divorce proceedings. 

When Does Divorce Make More Sense than a Legal Separation?

When there is certainty that no reconciliation is possible and/or welcome, divorce is usually the better option.  Filing for a legal separation and then a divorce will incur more costs and can stir up issues that had previously been resolved.  If financial circumstances change, that could be the basis for having to renegotiate terms, which can become costly, upsetting, and time consuming. 

Another consideration is the ability and desire to make a more complete break.  Spouses who are legally separated still retain some rights and responsibilities regarding each other.  There may be a need later to make medical or financial decisions for each other because they are still considered next of kin.  These issues no longer exist after divorce. 

Divorce enables the parties to get remarried.  This is not possible after a legal separation, since the couple is still considered married under the law. 

Not all states permit legal separations.  It is best to check with an experienced divorce lawyer before proceeding with either a legal separation or a divorce to fully understand the options and ensure the path chosen provides the more beneficial outcomes.

How Do I Seek a Legal Separation in Alabama?

The state of Alabama does allow legal separations.  Couples need to file a request, or petition, to the court for an intervention that demonstrates the following: 

  • One or both spouses have been residents of Alabama for at least six months
  • At least one of the spouses wants to live separate from the other
  • Grounds for the request

Grounds for separation involve showing that the marriage has failed to the extent at which it is no longer possible to cohabitate or that there is a fundamental incompatibility between the spouses.

Huntsville Divorce Lawyers at Hodges Trial Lawyers, P.C. Represent Clients Seeking Divorce or Legal Separation

Marriage difficulties can seem insurmountable.  The experienced Huntsville divorce lawyers at Hodges Trial Lawyers, P.C. help our clients work through the pros and cons of their options with a focus on protecting their future, including considerations regarding financial stability and the best interests of children of the marriage.  For an initial consultation, call us at 256-539-3110 or 888-539-3110, or contact us online. Our Athens and Huntsville, Alabama, offices represent clients throughout North Alabama, including Madison County, Limestone County, Marshall County, Jackson County, Morgan County, and Lauderdale County.