Many people assume that a legal separation is a simpler, less dramatic alternative to divorce. In practice, the opposite is often true. A legal separation can actually be more complicated because it often creates uncertainty about what will happen next.
The reason is simple: a legal separation usually ends in one of three ways:
First, the parties might reconcile.
If that happens, the legal separation may need to be vacated or otherwise addressed so the couple can return to their prior legal status. While reconciliation is obviously a positive outcome, it can require additional legal steps to unwind what was done in the separation proceeding.
Second, the parties might eventually divorce.
This is a very common outcome. When negotiating a legal separation, some couples want to spell out what would happen if they later proceed to divorce. While it can be helpful to discuss those possibilities, provisions about a future divorce may not always be enforceable. In some situations, a postnuptial agreement may be a better way to address those issues.
Third, the parties may remain legally separated indefinitely.
Unlike divorce, legal separation does not terminate the marriage. In theory, the parties can remain legally separated for the rest of their lives.
Because of these possibilities, a legal separation can take on a life of its own. A good family law attorney will ask careful questions about the parties’ intentions in each of these scenarios and try to negotiate terms that make sense regardless of what ultimately happens. Even then, once a separation is finalized, there is always the possibility that future legal issues will arise depending on how the relationship evolves.
That does not mean legal separation is never appropriate. There are situations where it makes a great deal of sense.
For example, some couples have relatively few assets and simply want to live their lives separately without formally ending the marriage. In other situations, one spouse may have a chronic illness and the other spouse has health insurance that might be lost if the parties divorce. Sometimes the motivation is religious or social rather than legal.
Another common reason people consider legal separation is that they want a temporary arrangement while they figure out their marital situation. They may want clarity about custody, financial support, or who will live in the house while they decide whether reconciliation is possible. For those temporary arrangements to be enforceable, however, they generally must be approved and signed by a judge. A temporary order can often be reached within a legal separation case. But once that case is filed, the court typically treats it like any other lawsuit that eventually needs to be resolved—either through settlement or trial—unless the case is placed on hold after a temporary agreement is reached.
The bottom line is that legal separation is not necessarily the “simpler” path many people assume it is. In some cases it is the right tool. But because it can lead to several different outcomes—and sometimes ongoing legal involvement—it requires careful planning and thoughtful legal advice. And ultimately, is usually more complicated than a divorce, at the least from the lawyer’s perspective.