What's the Difference Between Separation and Divorce?

Unhappy young couple deciding between divorce and separation

Whether you and your spouse decide to separate or divorce, ending a marriage is never easy. It's critical to fully understand your legal rights and options to determine if legal separation or dissolving your marriage would be best for your situation. It may seem like there is not much of a difference between separation and divorce, but they are worth considering.

Divorce is final and legally ends your marriage for good. However, there may be many factors that should be carefully considered if you want to live separately from your spouse while remaining married for personal, practical, financial, or religious reasons.

What is a Legal Separation?

A legal separation allows spouses to live apart during the time they are married. It is similar to a divorce in that the court can issue a judgment dividing your property and assets, allocating responsibility for debts, establishing custody, and determining alimony. However, it’s crucial to be aware that a separation does not end your marriage. In addition, the court costs, time involved, and mediation requirements are generally the same as those in a divorce.

Legal separation has some flexibility and can be structured according to the needs of your situation. Unlike a divorce, legal separation can be temporary and issued for a limited duration of time. After the specified separation period ends, you can decide whether you want to move forward with a divorce.

Additionally, separation proceedings may be commenced in anticipation of divorce — a judgment of separation may be converted to a judgment of dissolution of the marriage within two years after the judgment of separation has been entered by the court. A judgment of separation can also be vacated so that it is no longer in effect, and you can resume living with your spouse.

Reasons to Consider Legal Separation

There can be many reasons you might choose to legally separate instead of divorce. Depending on the circumstances, a legal separation may offer the same protections as a divorce while permitting you to retain some of the benefits of being married. For example, there can be tax, insurance, and other economic advantages to a legal separation. Separation can also provide you with additional time to divide your property before rushing into a divorce.

Common reasons for legal separation can also include the following:

  • Neither spouse satisfies Oregon's six-month residency criteria
  • You may be able to stay on your spouse's health insurance policy
  • Separation can allow you to spend time apart if you hope to reconcile
  • You have religious or moral objections to divorce
  • You wish to remain legally married for the children
  • You and your spouse can continue to file joint taxes
  • By separating, you can divide property without divorcing
  • You wish to have legal protection from your spouse's debt or liabilities, though each case is different and protection is not always available

Additionally, you need to be married for ten years before you can receive military or Social Security benefits in connection with your spouse's employment. By choosing to separate, rather than divorce, you can stay married until you reach this benchmark.

Difference Between Separation and Divorce: Reasons to Choose Divorce

Although separation may be beneficial in some cases, it is not right for everyone. In situations involving abuse or domestic violence, it may be healthier to cut ties with your spouse altogether. Divorce might also be the better avenue if there aren't any financial or legal benefits to remaining married because legal proceedings for both separation and divorce can be costly. You could potentially end up incurring more expenses in the long run by having to go through with each legal process.

While separation can serve as a "trial-run" for divorce, you should carefully evaluate the pros and cons of each option. If you know there is no possibility of reconciliation, you may wish to file for a divorce to avoid prolonging a marriage that you know will never work out. Oregon is a "no-fault" divorce state. This means that if you file for separation when your spouse prefers to divorce, they can convert the case to a dissolution proceeding within two years from the date of filing.

If you are planning to remarry in the near future, it's important to keep in mind that a separation does not end your current marriage. In order to marry another, you will still need to obtain a divorce.

Entering into a Legal Separation Agreement

In order for your separation agreement to be legally enforceable, you must first file a petition with the court, and a judgment must be entered. The agreement you and your spouse enter into can be highly detailed and specify child support, custody, alimony, property distribution, and debt division. It can also set forth a plan for parenting time and visitation and address any other aspects specific to your separation.

If you and your spouse cannot agree on the terms of the separation agreement, you might consider attending mediation. Otherwise, the judge will weigh the evidence and testimony in your case and determine the outcome, based on your specific case.

Contact an Oregon Divorce and Family Law Attorney

If you would like to learn more about the difference between separation and divorce, a knowledgeable attorney can help. Based in Salem, Litowich Law can discuss your options and help you to understand whether a divorce or separation is the best decision for your situation. We welcome you to contact us for a consultation.

Categories: Divorce