What's the Difference Between a Separation Agreement and Divorce?

A separation agreement can help you negotiate things during a divorce. Here’s how to know the difference between this and a divorce.

If you’re considering divorce, it’s a difficult time. It’s even more difficult if you’re deciding whether a divorce or a separation agreement is a better choice for you.

Depending on who you ask, separations can be worse for women in the long run – or help save a marriage.

We’re breaking down the difference, and which one is better for you.

What is a Separation Agreement?

But first, the basics.

A separation agreement is an agreement between a married couple that allows you to live apart. It may govern various decisions like alimony, child support, custody, and property division.

In many ways, it’s similar to a divorce. In fact, the negotiations are similar. But a separation comes with a few key advantages.

Advantages of a Separation Agreement

First and foremost, a separation agreement acts as a sort of trial period. It allows a couple to spend time away from each other to decide if divorce is really what they want.

This is especially useful if your marriage has a lot of conflicts -a cooling off period can help you clear your head and think about the decision rationally.

It can also be a good option for people who have religious or moral objections to divorce. Unlike a divorce, a separation allows you to live apart without breaking the marriage.

What is a Divorce?

For context, before we dive into the differences between divorce and separation, let’s first talk about what divorce is.

A divorce is the legal dissolution of a marriage. All assets acquired during the marriage, including property and finances, are split between both spouses based on a settlement, and custody decisions related to any children are also negotiated.

A Few Key Differences

So, what are some key differences between a separation agreement and a divorce?

The big one has to do with marital status. Most other differences between divorce and separation stem from the issue of marital status.

Marital Status

In a divorce, your marital status reverts back to single. You are no longer legally attached to your former spouse, and any shared assets are no longer shared between you.

A separation agreement doesn’t work that way.

You’re still married in a separation, even though you no longer live together. This comes with certain benefits that aren’t available in a divorce, though it also comes with certain challenges that a divorce negates.

Debts and Liabilities

One of these challenges is shared debts and liabilities.

In a divorce, you are absolved of your partner’s debts and liabilities as part of the dissolution process. In a separation, since you are technically still married in the eyes of the law, you remain responsible for your partner’s debts and any debt shared between you.

Healthcare

That said, the benefits of a separation agreement lie in continuing to share assets.

One of the big ones is healthcare. If you received healthcare and health insurance through your spouse, a divorce will remove this benefit, as the insurance was not technically yours.

However, in a separation, you still have access to insurance and coverage through your partner because you’re still married.

Decision-Making

There’s also the matter of legal decision-making.

For example, let’s say your partner was in an accident and couldn’t make medical decisions on their own. Spouses are considered next of kin and can make these decisions, even if you’re separated.

If you divorce, you’re no longer considered next of kin.

Common Questions

Like we said, this isn’t an easy time. Your marriage is in a rough place, and you’re probably upset.

Rushing into decisions about how to move forward doesn’t benefit anyone, least of all yourself.

Before you make any major decisions about separation or divorce, take a deep breath. Try some tips to find some inner peace when everything is going wrong.

Then buckle your seatbelt. The ride’s not over yet.

You’re going to have some unpleasant conversations. Those are necessary. Here, we’re answering a few questions to make those conversations easier.

Why Get a Separation Agreement Instead of a Divorce?

Before you get on the phone with the best divorce lawyers, you need to decide whether divorce or separation is right for you.

Some reasons may be emotional. You may not be sure you want a divorce, even though you know your marriage is having major issues. A separation can give you some time to figure out what you really want.

Other reasons may be financial. Maybe one of you has been out of the workforce for some time, and a divorce would place an impossible financial strain on your family.

Maybe you don’t believe in divorce, or certain pressing legal concerns make divorce a bad idea.

Whether you should get a separation or a divorce largely depends on the couple in question and the nature of your marital conflicts.

This is why it’s important to have honest conversations with your spouse, preferably while you’re both calm and collected.

What Happens if You Divorce After Separation?

Usually, a divorce involves a lot of negotiation to reach a settlement, especially if you and your spouse can’t agree.

Depending on the case, your separation can require the same amount of negotiation.

The difference between separating first instead of jumping straight into divorce is that a judge will often carry over the separation agreement into your divorce settlement.

They assume that since you agreed to the terms of the separation, you were happy with the arrangement. Carrying over a separation straight into a divorce agreement can also save a lot of court hours, which most judges and lawyers favor.

For this reason, if you decide to separate first, you should make sure to reach an agreement you can live with long-term.

Choosing Between a Separation and Divorce

There’s also the vital question of choosing a separation versus a divorce.

Before you do anything else, take an honest look at your marital state of affairs. This includes finance and assets, but it also includes the emotional climate.

Be painfully honest about the way things look. If your marriage is in this much trouble, you aren’t doing yourself any favors by pretending everything’s sunshine and daisies.

From there, you need to have an honest discussion with yourself and your spouse about what you’re willing to live with. This can include your status as partners but can also include any children you may have or living arrangements.

If you can’t get along long enough to have a real conversation like this, it’s probably a sign.

Which is a Better Financial Choice?

The best financial decision depends on the couple.

For example, in a divorce settlement, you often negotiate your way out of your partner’s debts, and shared debts are divided based on negotiations.

The financial terms of separation aren’t so clear-cut. Since you’re still legally married, you remain liable for your partner’s debts, but an agreement can limit your liability.

This is where the difference between a formal and informal separation is vital. If your separation is informal, you remain fully liable for any joint debts, and creditors can seek remedies against you. A formal separation outlines your liability and makes litigation down the road much easier.

On the other hand, shared financial obligations may be preferable if one of you hasn’t worked for some time and cannot sustain financial independence, or if you can’t support your family without shared financial resources.

Which is a Better Emotional Choice?

Emotional decisions depend largely on the couple.

If there’s a realistic chance that you could work out your issues, a separation may be preferable. Even an informal separation can give you time to figure out what you want.

If, on the other hand, you can’t agree on anything and your differences are irreconcilable, then a separation may just delay the inevitable. It may even make things worse, as communication and cooperation with your estranged partner may deteriorate over time if you spend years separated.

Ultimately, the emotional component depends on the scale of your problems and the reasons you’re considering a divorce or separation.

Beginning the Legal Process

Once you’ve reached a decision about whether a divorce or separation is right for you, it’s time to figure out your agreement.

Unless you can agree on everything, it’s best to bring in legal advice. Even if you can agree on everything, there may be legal considerations or loopholes you don’t know about that need to be addressed in your agreement.

Bring in the experts, even if you happen to be a divorce attorney yourself. In situations like these, emotions run high. You don’t want to end up with a poorly-written agreement that turns into a litigation nightmare.