When it comes to marriage, separation isn't the same as divorce—even if you have a "judgment of separation" from a court. Separation means that you are living apart from your spouse but are still legally married until you get a judgment of divorce. Although a separation doesn't end your marriage, it does affect the financial responsibilities between you and your spouse before the divorce is final.
There are three types of separation: trial, permanent, and legal. In most states, only one (legal separation) changes your legal status—but all three have the potential to affect your legal rights.
If you and your spouse need a break from the relationship, one option is to live apart while deciding whether to divorce—a "trial separation." Legally, not much changes during a trial separation—all marital property laws still apply. For example, a court will treat the money you earn and the things you buy during the trial separation as property acquired by a married person. That will often mean that the property is jointly owned by you and your spouse (depending on your state's rules about property ownership).
If you and your spouse separate but hope to reconcile, it's a good idea to write an informal agreement about the rules of your separation. For example, your trial separation agreement might address:
If you ultimately decide to divorce, you might be able to use this trial separation agreement as a starting point for creating a marital settlement agreement.
If you and your spouse determine that there's no hope of reconciling, your trial separation becomes a permanent separation.
When you live apart from your spouse without any intention to reconcile, but you are not divorced, the law considers you permanently separated.
Depending on the law where you live, a permanent separation can change property rights between spouses. For example, in some states, assets and debts acquired during a permanent separation belong only to the spouse who acquires them. Once you are permanently separated, each spouse becomes solely responsible for any debts they take on. Similarly, spouses who are permanently separated are no longer entitled to any share of property or income acquired by the other.
Because the spouses' rights to each other's property and obligations for debts change significantly as of the date of a permanent separation, spouses often hotly dispute the exact date their separation became permanent. For example, if your spouse left in a huff and spent a month sleeping on a friend's couch, but you didn't discuss divorce until the month had passed, the date the separation became permanent might be unclear. And that means that if your spouse received a big bonus at work during that month, you might be able to argue that part of the bonus belongs to you.
If you move out of the house and don't expect any long-term reconciliation with your spouse, think twice about going out together or spending the night together just for old times' sake. If you do briefly reconcile, you risk changing the date of separation and becoming responsible for your spouse's financial actions during a period when you thought you were responsible for only your own.
Once you permanently separate from your spouse and have made basic agreements about your joint assets and debts, you don't have to divorce right away. You might decide to remain married for a variety of reasons, such as a desire to not disrupt your children's lives or in order to retain insurance coverage. Or, sometimes maintaining the status quo is just easier than pursuing a divorce. On the other hand, you might decide to divorce as soon as you can get the paperwork finalized, or, if your state has a required separation or waiting period, when that period is over.
Some states' laws require spouses to separate before a court can finalize their divorce. The details of state laws on required separations vary—for instance, many states require spouses to live "separately and apart" for a period of time before the court will accept a petition (formal request) for divorce, while others don't require separation until after the petition is filed. If you file before you've met the separation requirements, the court may dismiss your case. Other states might require spouses to separate while the divorce is pending.
Many state laws that require separation before divorce have exceptions to the separation requirement or apply to only certain types of marriages. For example, Arizona requires a separation period only for couples who are ending a "covenant marriage," and Nevada requires a separation unless the couple is filing a no-fault divorce alleging "incompatibility." (See Ariz. Rev. Stat. § 25-903 (2021) and Nev. Rev. Stat. Ann. § 125.010 (2021).)
In some (but not all) states, you can legally separate from your spouse by filing a petition (request) in family court. Being legally separated is legally different from being divorced or married—you're no longer married, but you're not divorced either, so you can't marry anyone else.
A judge who grants a petition for legal separation will enter an order that includes specifics about property division, alimony, and child custody and support. In this way, a legal separation order is similar to a divorce decree. If the spouses decide to divorce after a legal separation order is in place, they could choose to use some or all of the terms of the order in a marital settlement agreement.
People choose legal separation as an alternative to divorce for a variety of reasons, such as:
An important note: If you're considering a legal separation instead of divorce so that you can keep insurance benefits, check the insurance plan before making the decision. Some consider a legal separation the same as a divorce for purposes of terminating health benefits.
Adapted from Nolo's Essential Guide to Divorce, by Emily Doskow.