If a married couple reaches a stage in their relationship where they no longer wish to reside together, they have a choice. They can end the marriage through a divorce proceeding, or they can choose live separate and apart while remaining married. There are significant differences between a divorce and a separation that would influence the decision to choose one over the other.
A divorce terminates a marriage and may only be accomplished through a judicial proceeding in which a judgment or decree ending the marriage is issued by a judge. Because marriage is a civil union recognized under state law, only a court order can end it.
A person must have grounds for a divorce in order for a court to agree to terminate it. The grounds vary from state to state, but most states authorize the granting of a divorce in cases where it can be proven that one of the parties committed adultery, cruel and inhuman treatment, or abandonment. Many states have adopted no-fault grounds such as irreconcilable differences for divorce.
Separation can be either informal or legal. An informal separation is not recognized by the laws of the state. Informal separation occurs when a married couple live apart from each other. Nothing is in writing, and no court proceedings are involved.
Legal separation occurs when a married couple lives apart from each other under the terms of a written separation agreement or through a court ordered separation. Like a divorce, a court ordered separation can only be obtained through a judicial proceeding. Each state determines the grounds it will recognize as sufficient a court to grant order a separation.
Making the Choice
The primary distinction between a divorce and separation is that parties who decide to live apart from each other under a legal or informal separation are still married to each other. Some people have religious or moral beliefs that make them want to live apart without terminating the marriage. For others, the decision is based on economics.
A person receiving health insurance benefits through their spouse’s employer would lose those benefits in a divorce. Most plans allow the benefits to continue in a separation because the parties are still married.
Social Security or military pensions require that the spouse of a person entitled to receive retirement benefits must be married to them for 10 years. A separation would allow the marriage to continue to permit the spouse to obtain pension rights.