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Legal separation vs. divorce: what is the difference?

What is the difference in a legal separation and divorce? In short, the answer is that in a legal separation you are still married, and in a divorce you are not. Other than that, the two are essentially the very same thing, accomplished by the very same process and forms.

So why then, would anyone choose a legal separation? Most people think it is because there is a chance of reconciliation between the parties, and they think of the separation as just a "trial period." This is not always the case. For instance, consider a divorce of parties who are in their 70's, who will very likely never get married again.

One reason they may choose a legal separation is because, in doing so, they remain legally married which means one spouse can still be covered on the other's medical insurance. For elderly parties who do not intend on another marriage and can part ways amicably, this may be the best option when one or both have major medical issues. Other reasons for legal separation instead of divorce may be for religious reasons, or if one of the parties does not consent to divorce.

At any time, either party may convert a legal separation into divorce. In the alternative, a legal separation can be set aside allowing the parties to remain legally married, whereas a divorce decree is final.

When speaking with a divorce attorney, it is important to be completely honest and up-front regarding the situation, and where both parties stand. The attorney can then recommend the options moving forward, depending on the unique circumstances. Reconciliation of parties who are in the midst of divorce proceedings happens more often than you may think. A legal separation can be utilized as a protective "cooling period" for parties to make a final decision at a later date.

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