Separate is not Equal: The Differences Between Legal Separation and Divorce

March 27, 2017

Legal separations are one of the most misunderstood areas of family law.  This article clears up some of the misconceptions about legal separation in Wisconsin and how it compares to divorce.

Legal Separation is Not the Same Thing as Physical Separation

Many people confuse legal separation with physical separation.  Legal separation is a legal process that goes through the court system.  The end result is a Judgment of Legal Separation granted by the court which legally changes the marital status of both spouses.  As a result of a legal separation, the couple is no longer considered married for purposes of acquiring marital property or debts, or for filing joint income tax returns, for example.

By contrast, a physical separation does not change a couple’s legal status.  Physical separation is simply the act of moving into separate bedrooms or residences.  It can be done privately, without any court or legal involvement, and is merely an informal arrangement between the spouses.  For many couples, physical separation is a precursor to a legal separation or divorce, but not always.  It is possible to physically separate from your spouse without getting a legal separation or divorce.  Similarly, it’s possible to get a legal separation or divorce while still cohabitating with your former spouse.

Time and Cost

A legal separation is not cheaper or quicker than a divorce.  The process to get legally separated is virtually identical to the process to get divorced.  You have to file paperwork with the court and wait at least 120 days.  During that time, you and your spouse must try to resolve all issues regarding legal custody and physical placement of your children, child support, maintenance (a/k/a alimony or spousal support) and property division.  It often takes longer than 120 days to reach an agreement on these issues or to have the court decide them at a trial.  In the meantime, you are still technically and legally married.  At the end of the process, the court will officially grant the legal separation by issuing a judgment, which will contain all the terms regarding physical placement of the children and finances.  This is the same as how a divorce winds its way through the court system.

Because the legal process is the same, and the issues that have to be resolved are the same, a legal separation is not necessarily cheaper than a divorce in terms of court fees and attorney’s fees.

Remarriage

After a divorce, the parties are free to marry other people, as long as they wait at least six months after the divorce is finalized.  When a couple is legally separated, neither person is free to get married to someone else.  Although the couple is not technically married to one another anymore, the couple is not officially divorced from one another either.  The couple would first have to convert the legal separation to a divorce, and then wait the requisite six months before either person could legally marry another person.

Maiden Name

After a divorce, the court can authorize either spouse to resume the use of their maiden name.  By comparison, in a legal separation the court does not have the authority to restore either person to their maiden name.  If a person who is legally separated wants to change their last name, that person must file a new legal action with the court, petitioning for a name change.

You are probably wondering:  if the time and cost of a legal separation is the same as divorce, and you can’t get remarried and can’t go back to your maiden name, why would anyone choose a legal separation over a divorce?

Reconciliation

A legal separation makes it easier for the couple if they choose to reconcile.  In fact, the court has to determine in a legal separation that the marriage is “broken,” whereas a divorce requires a determination that the marriage is “irretrievably broken.”  So the possibility of reconciliation is a key distinction.  At any point after a legal separation, the couple can easily resume their status as a married couple by filing a simple document with the court that vacates the legal separation.  A couple who has been divorced for less than six months also has the option to vacate the divorce and to automatically resume their marital status.  However, a couple who has been divorced for at least six months has to go through all the normal steps of getting married to one another again, including obtaining a new marriage license, enlisting an officiant and witnesses, etc.

Health Insurance

In a divorce, the former spouse is no longer eligible for coverage under the family health insurance plan.  On the other hand, some insurance companies allow a legally separated couple to remain on the same family plan.  This may be a very important benefit if one spouse is self-employed, unemployed, or otherwise faces a high cost or other barriers in obtaining health insurance.

Personal reasons

There may be other reasons why a couple would prefer a legal separation.  Perhaps there are moral or religious religions why a couple cannot pursue a divorce.  Maybe there is a fear of the stigma associated with the big “D” word.  Additionally, some people believe that presenting a spouse with a request for a legal separation is a gentler and less offensive or shocking approach than requesting a divorce.  Even if the parties start out in the legal separation process, it is very easy to switch the case to a divorce without having to start over, if the parties change their mind midway through the process.

There are other nuances of a legal separation as well.  If you need help deciding whether legal separation is right for you, contact Axley’s Family Law Team.

For more information about "Separate is not Equal: The Differences Between Legal Separation and Divorce," contact Kathryn M. Grigg at kgrigg@axley.com or 608.283.6703.