The Difference Between Divorce and Legal Separation in USA

Marriage is one of the most complicated social institutions because of the intimate nature of relationships involved. The breakdown of a marriage therefore cannot be dealt simplistically which is why most developed civil societies like the United States offers its citizens various legal options like a separation or divorce.

The chief distinction between divorce and legal separation lies in the degree of the dissolution of the marriage. In case of a legal separation also known as judicial separation, the estranged couple live in separate households but their marriage is not legally terminated.  However in case of divorce, the estranged couple is allowed by the court to fully dissolve their marriage.

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Difference based on purpose

A decree for legal separation in the United States can be obtained by any couple who do not want to live together any more but neither do they wish to end their marriage immediately. Some states may also make it compulsory for a couple who has filed for a divorce to go through a mandatory period of legal separation which in case of a state like Maryland is one calendar year. The chief purpose of a separation is to give the estranged couple enough time to re-consider their decision of dissolving the marriage. A divorce on the other hand is characterized chiefly by the finality of the action and thus the purpose of filing a divorce is to completely dissolve the marriage. However some couples may take recourse to legal separation as an alternative to divorce due to moral, religious or cultural objections to divorce.

Among other reasons why an estranged couple may choose to be legally separated rather than divorced is to continue to obtain benefits in taxation, military lifestyle or financial transactions which they may have been getting as a married couple. A similar reason is being able to keep insurance benefits on a spouse’s coverage. In case of a divorce however, most of these benefits are terminated.



Also one of the parties can seek legal separation in order to protect his/her financial interests while apart since assets and debts acquired during a legal separation is usually considered separate property.

Sometimes a legal separation is a temporary arrangement which may be financial - like deciding who will pay the bills, possess property and whether alimony is required - or which may have to do with the interim plans for the care, custody and financial support of children from the marriage.

Grounds for either legal action

Another important distinction between a divorce and legal separation is based on the grounds for either legal action. In case of a legal separation, the grounds could be relatively lighter or temporary issues like mutual incompatibility. However in order to file for a divorce a couple needs to have stronger grounds like adultery, desertion, marital abuse for wishing to dissolve the marriage. Till recently some states in United States required the divorcing party to prove the “fault” of the other due to which the marriage must be dissolved. However now all states in the US allow no-fault divorces which allow a couple to terminate the marriage on basis on irretrievable differences and not necessarily due to someone’s fault like cheating or desertion.
Sometimes the legal conditions required to grant a separation and divorce may also differ. For instance in the state of California, one can file for judicial separation even if they have just moved into the state; a divorce on the other hand can be filed only by those who meet residency requirements.

Procedural differences

In United States, both separation and divorce are legal actions but there are differences in the procedure of obtaining each. In case of the former, both parties are required to file separation agreement forms in a civil court following which they will be allowed to live apart and be considered legally separated. In case of divorce, the forms to be filed are known ‘petition for divorce’ and may or may not – depending on the laws of the particular state where the divorce is being filed – include a “notice of motion of divorce”. While a court order approving the terms of the legal separation is usually sufficient to enable the estranged parties live away from one another, a divorce on the other hand may involve a formal court action, contestation, a trial and court motions in order to be fully completed.

Different issues

The issues dealt with in the legal separation agreement can be whatever the estranged couple decides to agree upon. It could be related to issues like division of assets and debts, child custody and support, child visitation schedules, and spousal support just like in case of divorce. Or it could avoid those issues if that is what the parties want, following which the court just files the agreement and executes it as a formal legal document. In case of a divorce however the court has the full authority to independently review the different issues of child custody, support and alimony whether or not brought forward in the divorce petition.

Difference in implications

As evident from their respective definitions, a legal separation involves the parties living apart from each other while they are still legally married while a divorce means the complete dissolution of a marriage by law. In case of judicial separation the parties are not legally allowed to enter into another marriage while a divorce restores you to the status of a single person and leaves you free to remarry. Also during the period of legal separation any child born out of the marriage continues to retain its legitimacy.

in case a couple is able to reconcile their differences during the period of legal separation and want to move in back together, no additional legal procedures are required. However a couple that has already been divorced need to get a fresh marriage license in order to be known as a legally married couple again.
In case when an estranged couple is not able to resolve their difference, they may move ahead towards getting a divorce. However this will involve a filing a fresh petition in the court since this is a different legal procedure with its own provisions and requirements.