Family Law

What's the Difference Between a Trial Separation, Legal Separation, and Divorce?

By Joseph Pandolfi, Retired Judge

Your marriage is in trouble, and you’re trying to figure out a way to deal with the situation. You know that divorce is one possibility, but you’re not sure if that’s the right choice. The good news is that you have another option—separation. There are different types of separation, so before deciding which road to take, you need to know what each of these paths involves.

A Trial Separation Is Purely Voluntary

At its core, a “trial separation” is nothing more than two spouses agreeing to live separate and apart. This is usually done to give you some breathing room, so you can assess your marriage without the tension that comes with living together.

There are no legal rules governing a trial separation; it doesn’t have a particular end date, and since it’s something that you’ve opted to do on your own, it’s up to you to set the terms and deal with putting them into effect. You'll have to consider such things as:

  • who the children live with and how often the other parent will visit
  • who pays bills relating to the marriage (such as the mortgage and child medical costs), and
  • informal child and/or spousal support, if a spouse needs it to make ends meet.

Because there’s no court involvement, so if one spouse violates your informal agreement, there’s no legal recourse to get that spouse to comply.

A Legal Separation Usually Requires a Court Order

The term “legal separation” can be a bit tricky. That’s because some states, such as California, have actual court procedures for obtaining a legal separation and others don’t. But even the states that don’t offer it may have alternative methods to obtain a legal separation.

In the states that offer a formal legal separation proceeding, the process begins by filing a formal petition (written request submitted to the court) seeking a separation. The court will determine the same issues it does in a divorce, including:

When all this is accomplished, the issues are resolved—but you have not completely terminated your marital status.

Some states that don’t provide for a formal request for legal separation, such as North Carolina and New Jersey, offer a “divorce from bed and board,” which is similar to a legal separation, because at the end of the process you remain married. This procedure is different from an absolute divorce (“divorce from the bonds of matrimony”).

More often than not, spouses looking to separate will opt for a formal written agreement, often referred to as a Marital Settlement Agreement, a Property Settlement Agreement, or simply a Separation Agreement. The separation agreement is a contract, and both spouses are legally bound by its terms.

Separation agreements are popular for a number of reasons, some of which are:

  • You don’t need to involve the courts in order to enter into the agreement, which saves time and money.
  • The agreement addresses the same issues as an absolute divorce or legal separation proceeding.
  • Unlike a trial separation, if one of the spouses violates the agreement’s terms, you can apply to the courts for enforcement.

Absolute Divorce Ends the Marriage Once and for All

A court proceeding for absolute divorce addresses all the issues that a request for a legal separation does, as indicated above. The difference is that once the divorce process ends, so does the marriage. Separation allows for second chances—divorce doesn’t. If you decide to get back together after a divorce, you literally have to remarry. That’s why any couple who believes there’s even a remote chance at reconciliation should carefully consider whether divorce is really the route they want to take.

Other Reasons Couples Consider Separation

Even when spouses believe their marriage is truly over, some still opt for separation over divorce. Most of the time, the reason boils down to economics.

For example, with the cost of health insurance being so high, choosing a legal separation—or a separation agreement—may allow one spouse to continue to be covered under the other spouse’s employer-provided health policy. Divorce automatically ends a spouse's ability to obtain health coverage through an ex-spouse's employer. Note, however, that health insurance policies differ, so you’d have to check with the health plan administrator to see how separation or divorce would affect your coverage options—in some cases, a separation will also trigger a termination of benefits for the employee's spouse.

The choice of separation or divorce can also impact future Social Security benefits. If a couple remains married for 10 years, under certain circumstances, each spouse may be entitled to take advantage of the other’s Social Security benefits, even if they’re later divorced. However, that would not be the case if the couple divorces prior to 10 years. So if access to these benefits is important to you, consider separation—at least until you’ve hit the 10-year mark. Read our Social Security articles for more information on retirement benefits for divorced spouses and disability benefits for divorced spouses.

As with all family law matters, you’d be well advised to speak with a knowledgeable family law attorney before making any decisions.

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