Difference Between Legal Separation and Divorce

What is the Difference Between Legal Separation and Divorce

Are you always having disputes with your spouse? Are you planning to get separated but uncertain about having a divorce? Maybe you want to think about it and consider a legal separation. A legal separation is somehow similar to divorce. In a legal separation, you’ll have to negotiate child custody and support, spousal support and the division of your properties. Besides, you are still legally married to your spouse, but can already live separately. 

However, deciding whether to get a legal separation or a divorce is sometimes confusing and challenging. It is crucial to understand the legal and emotional impacts of both options. You and your spouse must weigh the options together with a professional attorney. 

Legal Separation vs. Divorce

Legal separation and divorce have similar and different effects in so many ways. Both legal separation and a divorce legally separates you and your spouse. Whether you choose to have a divorce or legal separation, both of you are still going to live separately. Even your finances are also legally separated. 

If you have children, then you will also require child custody and support agreements. If you have marital assets and debts, you can divide it legally. The court orders all these actions. Getting a divorce and legal separation can create a healthy division in your lives. It also comes with financial regulations and sets reasonable boundaries that can save a family.

The main difference between a divorce and a legal separation is that the former signifies the legal ending of a marriage. It means that if you get a divorce, you are no longer married to your partner. If you are planning to remarry again with someone else, then you are free to do so. It’s like you are living your life again as a single person. 

Whereas, in a legal separation, though you are separated, both of you remain legally married to one another. When it comes to forms or papers, you must continue to mark that you are married. Another thing is, you cannot marry someone else, again. Read further as we explore the specific differences and similarities of divorce and legal separation.

Differences in Legal Separation and Divorce

There are main differences between legally separated and divorced. The most basic and standard distinction is that during a legal separation, you remain married and not in a divorce. When you get a divorce, your marriage is dissolved. Below are some of the other differences:

Marital status

In a legal separation, your marital status is retained, meaning you’re not allowed to marry again. In a divorce, you can remarry again.

Health care and other benefits

Legal separation allows the retention of healthcare and additional benefits, including certain social security benefits. On the contrary, all these benefits are terminated in a divorce.

Rights to properties

Separating on a legal basis preserves your legal rights to property benefits upon the death of your spouse. When you get a divorce, all these rights are extinguished.


If you are legally separated, your spouse still has responsibilities for your debt. However, if you are divorced, your liabilities and obligations are handled during the dissolution process.


Under separation, your spouse is still considered next of kin and can still make medical or financial decisions for you. If you are divorced with your spouse, you are no longer considered next of kin.


Reconciliation is more manageable with legal separation than with a divorce. Remember that you cannot undo your divorce. In a divorce, if you want a legal reunification, you need to remarry.

Similarities Between Legal Separation and Divorce

Although there are a lot of differences between the two, there are similarities as well. In both legal separation and divorce proceedings, the court decides the following:

Separation maintenance

Legal separation includes the equivalent of child support and alimony. It also applies in divorce but is distinguished and is usually achieved through a motion pending litigation.

Child custody

Both proceedings include legal rights to guardianship.

Child visitation

Both proceedings have legal rights to visit the child.

Property division

Both legal separation and divorce property division are based on the couple’s situation and decision.

Why Get a Legal Separation Instead of a Divorce?

Choosing whether to get a legal separation or a divorce is often a matter of personal preference. Some people have personal or religious beliefs that do not permit divorce. If you are not allowed to get a divorce, then a legal separation is a good option. When you are legally separated, you remain married, but you can live separately. 

In some cases, a legally separated couple can continue their relationship. With this, both of you stay connected. If you are legally separated, you are still entitled to some benefits, like health, social security and pensions.

Besides, being legally separated can prevent total separation. It allows a couple to resolve all the critical issues in their lives while keeping the marriage going. Also, it is reversible, unlike a divorce that has no going back. Aside from that, when it comes to child custody and support, legal separations are easier. It does not sound as devastating and final as a divorce can seem.

Key Takeaways

The main difference between legal separation and divorce is the marital status and division. In a legal separation, you are still legally married to your spouse though you are living separately. If you do decide to get divorced, you have to go through some necessary legal steps to terminate your marriage. A family attorney with experience handling legal separations can clearly explain the pros and cons of legal separation and divorce.

If you have some questions in mind about divorce and legal separation, you can speak with Foulds & Partners today. Contact us for an appointment, either by calling us or sending your email to our New Brunswick office. All things are kept private and confidential. Reach out today!

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