Legal Separation vs. Divorce

While some people may use the two terms interchangeably, legal separation and divorce are two very different things under the law. If you and your spouse wish to go your separate ways, understanding the differences between divorce and separation can simplify the complex legal process and help you choose the right option for your needs.

What Is a Legal Separation?

Legal separation is where spouses live separately and have their own assets but remain legally married. A legal separation isn’t the same as a practical separation in which you live separately and split assets – you need to follow a specific process to gain legally separated status.

Couples can have plenty of reasons to choose legal separation instead of divorce. Some are practical, relating to health insurance benefits and other financial reasons. Others are more emotional, such as religious or cultural pressure or reasons relating to the children of the marriage.

Filing for legal separation involves you and your spouse coming to a legal agreement (or a judge issuing an order) about the division of assets, spousal support, and parental rights and obligations. Just like in a divorce, individuals may choose to contest certain terms, and legal separations can be just as hostile as divorce proceedings. Following a legal separation, parties will live financially independent of one another and there will be legally binding orders about the allocation of parental rights and obligations.

Legal separations are relatively flexible in that couples can choose to rescind them and move back together or proceed with an official divorce at a later date. 

What Is a Divorce?

Divorce involves the legal termination of a marriage. Just like legal separation, it involves the division of marital assets and the allocation of parental rights and obligations. Divorces can be relatively amicable with very few disputes or become complex, drawn-out situations that need to go to trial to be resolved.

 Getting a formal divorce can terminate many other legal agreements, such as the right to inherit from each other. You no longer benefit from spousal insurance, pension, or Social Security benefits. Essentially, a divorce is a clean break that completely separates you and your spouse as legal entities.

The Main Difference Between a Legal Separation and a Divorce

Divorces and legal separations share many similarities. Both require spouses to agree on how to divide their assets and obligations (or else have a judge make this determination). Spouses may request spousal support in both instances, and both proceedings can be emotionally fraught or relatively amicable.

The largest legal consequence of divorce vs. legal separation is that a divorce formally terminates a marriage. This allows you to remarry, as remarrying while separated but married is technically illegal. In other words, divorce creates a clear separation between the two parties where they can act as individual entities moving forward.

Which One Is Better – Divorce or Separation?

Choosing between a divorce or legal separation is an emotional process, often with no clear answers. Legal separation still allows for a connection between you and your spouse, while a divorce is a more permanent division.

There is no right or wrong answer when deciding which option is right for you. Every couple has different circumstances that require personalized solutions. At Jones Law Firm, PC,  you will find a compassionate attorney that understands your needs. We understand that finding the right attorney can go a long way to helping you make the right decision.


The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

Our team includes attorneys licensed to practice in multiple states including April D. Jones in California, Patrick G. Barkman in Texas, the Cherokee Nation, the Northern District of Texas, and the District of Colorado (United States Court of Appeals 10th and 5th Circuit).