8 Truths to Understand about Legal Separation


As of 2016, the nationwide divorce rate continues to hover between 40 and 50 percent. But what is less well reported is the number of couples that opt for legal separation instead of divorce. The two terms sound surprising alike, but there are also some important differences to understand.

In this post, learn 8 truths about legal separation that may be helpful to know.

Truth #1: A legal separation is different than a trial separation.
Some struggling couples use a trial separation to get some breathing room to consider whether or not to stay together or divorce. This is not the same thing as a legal separation, even though the two terms sound quite similar.

In contrast, a legal separation is a court-mandated, legally binding document that makes specific provisions for each spouse’s obligations.

Truth #2: One of the chief benefits of a legal separation is lower financial risk.
For some couples, it can be more financially advantageous not to divorce, even if it is clear staying together as a married couple in every sense of the term is not an option.

With a legal separation, troublesome financial aspects of separation such as alimony payments, child support payments, child visitation rights and debt/asset disbursement are clearly lined out, reducing the risk to both partners should they later decide to seek a divorce or get back together.

Truth #3: Legal separation does not always mean the same thing from state to state.
Before deciding to seek a legal separation, it is important to find out what the term means in your state.

In some states, a legal separation is a prerequisite for couples who wish to divorce. In some states, it is not a prerequisite but can be granted by the court. And in some states, there is no recognition or requirement when it comes to a legal separation.

Truth #4: Obtaining a legal separation can be a lengthy process.
In states that recognize and/or require a period of legal separation as legally binding, it can be a lengthy process to obtain one. In fact, in some states it can take as long or longer to obtain a legal separation as it can to obtain a divorce.

Truth #5: A wife cannot revert to her maiden name during a legal separation.
In many ways, a legal separation and a divorce can include many of the same protective elements. However, they are not one and the same. One of the noticeable differences is that, with a legal separation, the two individuals are still legally married. This means the wife cannot revert to use of her maiden name during a legal separation.

Truth #6: You have to submit a separation agreement to apply for a legal separation.
The Rocky Mountain Family Lawyers said, “If you find out that your state is one that recognizes and/or requires legal separation, then you need to file an application called a separation agreement in order to begin the process of filing for a court-mandated legal separation.”

Truth #7: You can have a trial if you want a separation agreement and your spouse does not.
If one partner in a marriage wants to apply for a legal separation and the other partner does not, it may take a court trial to determine whether the legal separation will be granted.

In this situation, the judge would be hearing a legal separation case as opposed to a divorce case, but the actual trial process would be quite similar.

Truth #8: With a legal separation, it is not required to either get back together or file for divorce.
One of the hardest facts for many couples (and loved ones) to wrap their heads around is that a legal separation does not necessarily have to lead to anything. Some couples remain in a legal separation infinitely, while others get back together or proceed to seek a formal divorce.

A legal separation is one tool to help struggling couples determine the next best steps. When used as a tool for these reasons, a legal separation can be healthy and beneficial for both partners.