Chapter Five: What is the Difference Between a Legal Separation and Divorce?
Many people are confused about the difference between the two and what are the advantages and disadvantages of each. In general, both are exactly the same with one important difference: with a legal separation judgment you cannot ever remarry unless you file for a divorce and obtain a divorce judgment. There are two factual patterns which lend themselves to a legal separation over a divorce in the author’s opinion.
First, if there are religious convictions such that the spouses will not divorce, then this allows them to live separate and apart in a legal manner with a judgment of legal separation which terminates the community property laws being applied as the marriage continues as the parties are still legally married. As stated above, there is no difference other than legal status [married versus unmarried] and a legal separation judgment has exactly the same provisions as a divorce judgment: child custody; child visitation; spousal support; child support; division of assets and debts. As such, both spouses can go on with their lives. Both parties, in a legal separation, should immediately execute new estate plans including a revocable living trust if they own a residence or have assets over $100,000 [combined] in most instances. Since the parties are still married legally, this is mandatory to protect the rights of the separated spouses in the event of death. This also needs to be accomplished in a divorce however, in the judgment of divorce, the parties are no longer “spouses” for inheritance issues.
Second, if there is a member spouse who has health insurance coverage and a non member spouse who does not have health insurance coverage and the non member spouse has significant health issues or is not employable and cannot obtain private insurance due to the cost. This strategy is normally used for divorces when the spouses are 60 years and above and have no intentions of remarrying and are separating for other reasons. If there is a legal separation, a divorce can always be filed however this will take additional time and costs so the vast majority of petitions filed in family law court are for divorce and not legal separation.