The Difference Between Legal Separation and Divorce

Husband and wife taking off wedding rings

People who are thinking about filing for divorce in Missouri should consider their options very carefully. A divorce ends the marriage relationship forever. For some couples going through difficulties in their marriage, the finality of divorce might not be the best course. Missouri law allows couples to enter into marital separation agreements, which provide them with some distance from one another without ending the marriage altogether. Some couples need to stay married for financial or other reasons. Others want to try legal separation before divorce. If you are thinking about divorce, a separation lawyer with experience in Kansas City’s family court system can help you understand the difference between legal separation and divorce, and can advise you on which options are best for you.

What Is a Legal Separation?

Under Missouri law, “legal separation” is more than just living apart. A couple can divide up all of their belongings and create plans and schedules for child custody and visitation, but they are still not “separated” in a legal sense. A legal separation requires a judgment from a court. Much like a judgment dissolving a marriage, a judgment of legal separation must include provisions, when applicable, for child custody, child support, spousal maintenance, and property division.

What Is the Difference Between Legal Separation and Divorce?

Missouri courts can grant a divorce when they find that a marriage “is irretrievably broken,” with “no reasonable likelihood that the marriage can be preserved.” Once a court grants this kind of order, the marriage is over. State law directs courts to grant a legal separation when it “finds that there remains a reasonable likelihood that the marriage can be preserved.” The parties remain married, but the court has approved the separation of their property and their lives.

The way the state legislature worded the statute suggests that a court can refuse to grant a divorce to someone who wants one, and can grant them a legal separation instead. This does not happen often. If spouses are fighting one another in court, that is often a sign that their marriage cannot be preserved. Courts may grant legal separations to people who have reached an agreement on how to divide their property, arrange child custody, and handle the other matters that arise during a divorce. A couple could go to court when they cannot agree on the terms of their separation, or when one spouse wants a divorce and the other does not. Missouri courts encourage couples to do everything they can to reach an agreement.

What Is a Marital Separation Agreement?

A court can approve a written agreement signed by both parties and incorporate it into the final judgment of legal separation. The court must find that the terms of the agreement are not unconscionable, meaning that they are fair to both parties. The agreement should cover every issue that an agreement in a divorce case would cover, including the division of marital property. Any provisions relating to child support or child custody must, in the court’s judgment, be in the best interest of the child or children.

Reasons For Legal Separation

People may prefer legal separation over divorce for many reasons, ranging from practical to cultural. Legal separation can be a step in preparation for divorce, or it can be an alternative to divorce. In either case, remaining married while legally separated preserves certain legal rights, such as inheritance, while also protecting each spouse from certain liabilities. Ordinarily, for example, one spouse could be liable for the other spouse’s debts. Legal separation provides indemnification for both spouses.

Legal Separation Before Divorce

Spouses can use the legal separation process to resolve issues like marital property and child custody without actually getting divorced. They might do this if there is strain in the relationship, but they do not want to end the marriage altogether yet. A legal separation can be reversed, should the parties decide to reconcile. If once or both spouses decide to proceed to divorce, the legal separation judgment should cover most of the important issues.

Legal Separation Instead of Divorce

Divorce does not carry the same shame or stigma that it once did in our society, especially for women, but this was once a common reason people would legally separate instead of divorcing. That said, some people may still prefer legal separation over divorce for religious or other cultural reasons. It allows the spouses to go their separate ways while still officially remaining married. They cannot, however, remarry.

Legal separation may also have financial benefits for some couples. Since they are still considered to be married, they may take advantage of benefits only available to spouses. This does not always apply, though. Health insurance coverage for a spouse, for example, is not always available after entry of a judgment of legal separation.

How to File for Legal Separation

Filing for legal separation is similar to filing for divorce. One spouse files a petition for legal separation. They are known as the “petitioner.” Their spouse is the “respondent.” The title of the case is “In re the Marriage of [Petitioner] and [Respondent].” Once the case has been filed, the procedures for getting a legal separation are usually almost identical to those for a divorce, and can take just as long as a divorce.

What is the Cost Difference Between Legal Separation and Divorce?

It is always difficult to estimate the cost of a family law case. A legal separation case can be just as complicated as a divorce, depending on the couple’s assets and other issues, and how willing they are to work together. It is important to note that a legal separation is not typically less expensive or less time consuming than a divorce.

If a legally-separated couple decides to go through with a divorce later, it is possible that this subsequent action could be simpler. If nothing much has changed since their legal separation was granted, then the divorce might mostly be a matter of signing and filing court paperwork. This still requires additional time and fees, though. If any new issues or concerns have arisen, the parties will have to address those as well. It is best to talk to a legal separation lawyer about this.

Kansas City family law attorney Mark A. Wortman focuses his practice exclusively on divorce, legal separation, and other family law matters. Please contact us online or at (816) 523-6100 today to schedule a confidential consultation to see how we can help you.