Separation or Divorce? Choosing the Legal Option That’s Right for You

June 10, 2020

By Jill K. Sanders, Esq.

Some married couples are legally separated. Other married couples get divorced. When you’re considering ending your marriage, you should know your legal options. A separation and a divorce are two such options, each with possible benefits and drawbacks. Knowing the difference will help you make the right decision for you.


What is a Separation?

Legal separation is when a married couple stops living together, but they have an agreement as to their living arrangement. You and your spouse (or your lawyers) draft the agreement and then file it with the County Clerk. The agreement must be voluntarily agreed upon by the parties. And, it can be enforced by the Court if one of the spouses violates it.

The agreement usually details the rights and responsibilities of the spouses. This includes division of marital property, assets, and debt. It also will include the custody arrangement, visitation, and child support to be paid and/or received. Spousal support can also be included.


What is a Divorce?

A divorce will end or “dissolve” a marriage. The person who files for the divorce is the plaintiff. As we discussed in a recent blog, a plaintiff must establish residency and grounds for a divorce.

Divorces can be contested or uncontested. If the divorce is contested, it means the parties don’t agree on either (1) whether to get divorced, (2) the legal grounds for divorce, or (3) issues relating to finances or children. Uncontested means the parties agree on these issues.

To file for divorce, a plaintiff must purchase an index number from the county clerk. Then, the plaintiff must file either a Summons with Notice, or a Summons and Verified Complaint. After that, the other spouse must be served with these papers.

At some point, the spouses will appear in Court. Then there may be several other steps, including discovery, hearings, and a trial. When everything is finalized, including the financial details and matters relating to children, the judge will sign a Judgment issuing the divorce.


Benefits and Drawbacks of Separation and Divorce

The main difference between separation and divorce is that a divorce is a final, legally binding decision. In contrast, separations are revocable.

For some, separation provides a “cooling off” period where spouses can determine if they really want to get divorced. Some couples choose to get counseling during this time. The couple also retains the financial benefits of marriage, such as health insurance and social security benefits. And for some, separation will not violate religious beliefs against divorce.

A separation can, however, have drawbacks. Because you are still married, you will have financial and legal ties to your spouse. This also means you cannot legally marry a different person. You can only re-marry if you get divorced. And, if you choose to divorce after separation, you must wait at least one year to use the separation agreement as the basis for the divorce. Couples who are separated must also live apart, whereas there is no such requirement for a divorce. And for couples who cannot agree on a separation agreement, divorce may be the only choice.


Contact an Attorney

It is best to have a lawyer in any matrimonial proceeding. In particular, if there are issues around custody, child or spousal support, or division of marital assets, things can get quite complicated. Contact us today if you’re considering a separation or divorce. The lawyers at Pappalardo & Pappalardo, LLP work with the team at Guttridge & Cambereri, P.C. to provide you the answers to all your matrimonial and family law questions.