Many couples separate before getting divorced. In fact, many sources suggest that separation can actually be therapeutic and beneficial for a marriage. Therapists, too, say that a three- to six-month period spent apart can get spouses time to breath, think, and evaluate the marriage more calmly. For some couples, this break works, and the marriage is restored. For others, it does not, and divorce is the ultimate conclusion.
For almost everyone, this is separation. A couple contemplating divorce or going through a rough patch may decide to live apart for a few weeks or months in order to determine their desires about the marriage without the everyday distractions of the marriage.
Attorneys, however, distinguish between this type of informal separation and legal separation. According to the Minnesota statute, legal separation is "a court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship." Legal separation, then, is a means of determining a number of marital issues while the marriage remains intact. Divorce, on the other hand, determines many of the same issues while simultaneously dissolving the marriage.
With two different options, one might think that legal separation is easier or less costly than divorce. One would be wrong. Legal separation can take as long and can be as expensive as an actual divorce, so it is rarely used. In fact, according to a recent study, almost 80% of couples that separate eventually get divorced, so in most instances, it simply doesn't make sense to get a legal separation.
Still, there must be a reason why legal separation exists and is available as an option. Part of the reason is because a divorce was historically more difficult to obtain. No-fault divorce has made the legal separation less relevant.
Legal separation may be useful, though, for those who do not want to get divorced but who want the certainty of a court decree regarding the delegation of rights of responsibilities in the marriage. Legal separation can resolve such issues as child custody arrangements, division of marital assets, spousal support, and control of the family home.
These are, of course, issues that spouses should agree upon before separating informally as well. The difference between informal separation and legal separation is that in legal separation, a court determines the issues.
It may also be used as a defensive measure; in the event that an informal separation does lead to a divorce-as most do-a legal separation can guard against the prejudice a spouse may otherwise experience as a result of his or her leaving the marital home or temporarily giving up custody of the children.
In most cases, a divorce will be the appropriate action, but legal separation may be an attractive alternative for some couples.