What Is the Difference Between Legal Separation and Divorce?

When people become unhappy in marriage, they often need to part ways with their spouses. Some married couples choose divorce, while others opt for a legal separation.

The terms separation and divorce have been used interchangeably but have two distinct meanings. Therefore, understanding the differences between legal separation and divorce can help you make an informed decision.

Unhappy marriages are where one spouse feels like they aren’t loved, or both partners feel insecure. Many people turn to divorce or legal separation to escape bad and abusive relationships. Despite their similarity, legal separation and divorce are distinctly different processes.

If you want to break your marriage but need help with how to go about it, a seasoned New York divorce attorney can advise you on the best steps. Read on to learn the critical distinctions between divorce and separation to help you make an educated choice.

What Are Divorce and Legal Separation?

Legal separation and divorce are the two formal ways to dissolve a marriage. The legal status and practical effects of these two ways to end the marriage. A legal separation permits a married couple to live apart while continuing to be legally married.

Property and custody arrangements for children and spousal maintenance can be worked out between couples during a legal separation. In contrast, getting a divorce officially and legally separates spouses.

Divorce entails many decisions, including how to divide property and debt, who will have custody of any children, and whether or not one spouse will pay the other maintenance. In contrast to divorce, legal separation can be either temporary or permanent, depending on the couple’s circumstances.

The Major Differences Between Divorce and Legal Separation

Legal separation and divorce are different in many aspects. A legal separation is a court-issued order that permits a married couple to live apart while they remain legally married.

You can avoid divorce’s legal and emotional complications by choosing separation instead. Below are some fundamental distinctions between divorce and legal separation.

Marital Status

The primary difference between a separation and a divorce is that if you choose a legal separation, your marital status will remain unchanged as married. Conversely, a marriage gets terminated by a divorce.

The courts can give custody and visitation arrangements that allow you and your partner to live apart while still being parents to your children. But, you and your partner retain your marital status. Until you legally end your marriage through divorce, you won’t be legally able to remarry while you are separated.

Making Decisions for Each Other

An individual’s spouse qualifies as their “next of kin” or closest living relative.

When a couple separates but does not divorce, each spouse remains the other’s next of kin and retains the authority to make health care and financial decisions for the other.

Your spouse still has the final say in matters they view as beneficial to you and the family. Divorce is the only legal procedure that can dissolve this.

separation is different from divorce in New York

Healthcare and Other Benefits

Legal separation allows the retention of health insurance and other social security benefits, such as retirement, unemployment, or pension.

Social security helps protect middle-class individuals from the ups and downs of the market and prevents them from falling into poverty.

During a legal separation, both parties remain entitled to the benefits above. Conversely, a divorce nullifies the benefits above.

Right to Property

Unlike divorce, legal separation allows both parties to retain their marital property rights.

This means that if you and your partner decide to divorce, your respective property rights will remain intact upon the other party’s death.

However, any property rights get terminated with a divorce, and the couple’s property is divided based on their present circumstances and relation to the property.


Since the couples are still legally married after legal separation, there is room for reconciliation. The primary distinction between a legal separation and a divorce is that divorce is permanent while separation is temporary.

Separated spouses could use the time apart to discuss and weigh the pros and cons of their decision and its potential impact on their family and future.

Separation makes reconciling much more straightforward, and most couples can put their problems behind them and start again unless they genuinely can’t bear each other.

But, if the divorced spouses want to reunite and enjoy all the benefits of marriage again, they will need to get remarried because divorce prevents this.

Types of Separation Agreements

The custody provision of the separation agreement is among the essential parts of a separation agreement. This section outlines physical custody schedules and states if legal custody remains shared.

There are three distinct types of legal separation:

Trial Separation

This is a short-term, mutually agreed-upon separation for which no legal paperwork will be filed. Some couples choose to split up temporarily before trying to get back together.

When that time elapses, the couple often files for divorce if they haven’t reconciled. Most couples undergoing a trial separation continue treating all their assets and debts as marital.

Although there should be a separation agreement during a trial separation, many couples choose not to. This can lead to misunderstandings and mistakes regarding finances, child custody, and other vital issues.

Permanent Separation

If both partners agree that reconciling is impossible, they can choose permanent separation. While couples can still reconcile after a permanent break, it can affect marital property rights. The couple’s property and debts are still considered joint if they reconcile.

Legal Separation

Courts have the authority to grant legal separations. However, a divorce-like process is necessary for the 42 states that allow legal separations. Couples often submit settlements, but the court will oversee asset disbursement if they can’t agree.

Contact Family Law Attorneys in New York

Divorce and separation are complex processes that can emotionally affect everyone involved. Don’t go through the process alone. Contact a reputable family law attorney in New York for legal counsel.

If you need more advice about divorce or legal separation in New York, call Douglas Family Law Group today at 914-615-9058 to schedule a consultation.

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