Legal Separation vs. Divorce: Weighing the Options

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separation versus divorce
separation versus divorce

No matter the situation, navigating the end of a marriage is not a pleasant experience. It can be physically and emotionally taxing on every party involved. But understanding the ins and outs of the divorce process, knowing your individual rights, and remaining as amicable as possible as you forge the best path forward can make the experience easier for your entire family. A common question we get asked is whether couples, especially those with kids or those that have been in long-term marriages, are better off filing for a divorce or going the route of a legal separation. When weighing the options of legal separation versus divorce in Virginia, it’s important to understand what they both mean.

What is a Legal Separation?

A legal separation is a court order that mandates the rights, duties, and actions of a couple that are still legally married but are living in separate households. Both spouses can have separate homes, have joint custody of children, and essentially lead separate lives with the caveat being they are still married in the eyes of the law. A divorce, on the other hand, is a complete legal termination of a marriage.

Reasons for Legal Separation

Despite the fact they are not overly common, there are several key reasons why a couple may opt to enter a legal separation temporarily, or in some cases permanently.

Retention of Health-Care ­– During a legal separation, if an individual is covered under their spouse’s healthcare benefits, they can retain their health coverage for the entirety of the legal separation.

Estate and Health Decision-Making- Since a couple is still considered married during a legal separation, the spouses would still be considered next of kin for one another and are able to make medical decisions, financial decisions, and other important choices on behalf of their spouse.

Property Rights – A legal separation allows both spouses to maintain joint property rights that would otherwise be extinguished during a divorce. This means in the event of one spouse’s passing, the opposing spouse would have the same claims to joint property as they did throughout the marriage.

These key differences between legal separation and divorce mean there are certain situations where a legal separation may be a good idea. If a couple is divorcing but needs ample time to sort joint property, determine child custody, and build new lives, a temporary legal separation can provide stability for both spouses while they navigate the complexities of the divorce.

In some cases, if a married couple decides to separate later in life, entering into a legal separation can make things like estate planning, healthcare, and retirement planning easier as there is no need to separate or alter existing documents.

 

Disadvantages of Legal Separation

Along with the benefits, there are also disadvantages to a legal separation versus a divorce. In a legal separation, because the couple is technically still married – neither party is able to remarry another individual while the legal separation is active. If a couple is younger when they decide to divorce, a legal separation would not be advisable in the event either party intends to remarry.

There are financial advantages to a legal separation as well, including the sharing of debt. During a legal separation, debt is still viewed as joint – unlike in a divorce where debts can be allocated in an agreed-upon way during the separation process. Depending on a couple’s situation, maintaining joint debt can be financially taxing on both parties.

Determining the Best Option

Deciding whether a legal separation or a divorce is better for you and your spouse depends on a variety of factors. Consulting with a legal professional to discuss your unique situation can be beneficial when weighing all of your options, and the pros and cons of both decisions. If you’re looking for guidance navigating your separation, reach out today to the team at Hale Ball. Our team of family law experts offers compassionate and thorough support when it comes to the legalities of your divorce. The attorneys at Hale Ball can assist with any needed changes that come with divorce (like name change). This includes both traditional legal marriages and common law marriages. Contact our team today for legal aid.

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