Exploring the Differences: Divorce Versus Legal Separation

Posted: 2 March, 2023

Sometimes, married couples do not want to continue living together, but they are not quite ready to go through the entire divorce process. When making decisions regarding the state of a marriage, it is important to understand the ramifications of your choices. There are several differences between legal separations and divorce; understanding the difference between these will help both parties make the right decision.


There are two types of separations: Legal Separations and Trial Separations. Trial Separations are not legally binding or recorded on paper; it simply means that the husband and wife have decided to live in separate households for an undetermined period of time. The marriage is not dissolved, and there is no need to obtain the services of an attorney or file any paperwork with the courts. With a legal separation, however, things are more legally documented. Each party to the marriage must seek the services of an attorney, and a separation agreement must be drawn up and adjudicated in the courts. Each party’s legal and financial obligations are set forth in the terms of the separation agreement. Child custody and other marital issues are also put in writing in this agreement. However, the couple remains legally married and unable to enter into another marriage.

A legal separation can resolve all the same issues, but the parties remain married, the wife cannot take back her maiden name, and neither party may get remarried. You are not divorced. And, you are not fully married. You are on middle ground. The eligibility status on your Facebook page should be “marriage on hold”, or “thinking about it”.


A divorce is a full dissolution of the marriage. When a final divorce decree is entered, the parties are no longer married, the wife can return to her maiden name if she so desires, and either party may get remarried. Assets are divided, and debts are allocated. Child custody and visitation is determined, and the issue of spousal support is resolved.

When would you choose legal separation over a divorce?
The main “legal” reason a legal separation is used or requested is when a spouse would like to continue on the other spouse’s work benefits. Some personal reasons might be for religious purposes. Some couples use a legal separation as a transition. Starting with the legal separation before moving forward with a divorce.
Do I need a legal separation to move out?
Being married does not obligated you to live in the same home as your spouse. Spouses can move out if they like. Choosing to move out is not a legal action. You can be married and live in another house. Moving out doesn’t change your marital status. Nothing changes in regards to assets, debts, financial obligations or child custody obligations. You are still married.
From the court’s viewpoint legal separation needs to be agreed to by husband and wife. If one spouse files for a legal separation and the other spouse counter files for a divorce the court will almost always award the divorce. The court cannot force a spouse to accept a legal separation when they have requested a divorce.
Does legal separation protect your assets?
Legal separation has an advantage over simply moving out and living apart. When legally separated, assets and debts are divided the same way it is done in a divorce. Your debts are yours and her debts are hers. Property accumulated by one party after the date of legal separation is a person’s sole and separate property.
Are legal separations cheaper?
Legal separations are typically less expensive. Because the couples are talking the documents can be agreed to and filed with the court. Saving the expense of arguing in front of judge.

There are benefits to both separations and divorces. It is up to the couple to decide which solution works best for their situation. If the parties wish to make a complete break from each other, divorce is obviously the best choice. If they are unable to completely divorce due to personal beliefs, the need for health insurance or other obligations, a separation is most likely the answer.

Some states do not have provisions for legal separations. There is also a process for rescinding the legal separation in order to either pursue a divorce or resume the marital relationship. An experienced Las Vegas divorce attorney can help you with all the legal paperwork no matter what stage you are at in the proceedings.