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The Difference Between Legal Separation and Divorce

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If your marriage is floundering, you might assume your only option is divorce. However, there is a second option called legal separation. Couples who choose to legally separate will not end their marriages, but a legal separation will address the same issues that must be decided in a divorce. If you are thinking about separation as an option, you should speak to the experienced family law attorneys at the Law Offices of Bryan Musgrave about the difference between legal separation and divorce to decide which process will work best for you.

Two wedding rings balanced on their sides in front of gavel and books

What Is the Difference Between Legal Separation and Divorce in Missouri?

Under R.S.Mo. 452.305, Missouri courts recognize legal separation as separate from a dissolution of marriage (i.e., divorce). Legal separation encompasses more than living separately from your spouse; it involves a legal process that culminates in a court judgment. A legal separation must address the same issues that are addressed in a divorce, including how the couple’s property and debts will be divided, whether one spouse will pay alimony and the payment amounts, and how child custody, visitation, and child support will be handled.

The difference between legal separation and divorce is that a couple will remain legally married if they get a legal separation. When a couple gets divorced, their marriage will be dissolved and terminated. This means that a person who is legally separated is not free to remarry someone else, but a person who is divorced can marry.

A second difference between legal separation and divorce is the ground. In Missouri, the court can grant a divorce when it finds the marriage is irretrievably broken and that there isn’t a reason to believe that it can be saved. For a legal separation, the court must instead find that the marriage is not irretrievably broken and that there is a reasonable chance the marriage can be saved. While the couple will remain married, the court will still issue orders about property division, child custody, child support, and alimony, just like in a divorce.

Finally, before a couple can get a legal separation, both spouses must agree to pursue it. By contrast, one spouse can pursue a divorce regardless of whether their spouse agrees.

Why Do Some Couples Choose Legal Separation vs. Divorce?

Couples might opt for legal separation instead of divorce for several reasons, including the following:

  • The belief that they can work out their differences and save their marriage
  • Religious beliefs against divorce
  • Preserving the ability of one spouse to continue on the other’s employer-provided medical insurance
  • Staying married for at least 10 years so the lower-earning spouse can access spousal benefits from Social Security retirement
  • Remaining married until the kids have grown
  • Legally dividing property and debts vs. separating without the court process
  • Establishing custody and support rights vs. separating without the court process

Regardless of the reason, legal separation might be a good option for some couples who are unsure whether they want to get divorced, need continued access to benefits, or have other concerns about permanently ending their marriage.

Separation Agreements vs. Litigation

Just like a divorce case, couples going through a legal separation can litigate their issues and allow the judge to issue orders about how to divide their property, child custody, child support, and alimony. However, going through the litigation process can be costly and take a long time. In addition, couples are often less happy with the outcome of the litigation process than they might be if they negotiated a separation agreement.

If the spouses can agree on all of the issues involved in their legal separation, they can memorialize their agreement in writing and file it with the court. The judge will then incorporate the separation agreement into the court’s final orders and judgment. The court will need to find that the agreement is fair to both parties. Negotiating a separation agreement is generally less expensive and much faster than going through the litigation process.

Can you Get Divorced if you Get a Legal Separation?

Under R.S.Mo. 452.360, either spouse can file a motion with the court a minimum of 90 days after the final judgment of legal separation has been issued to ask for the separation to be converted into a dissolution. If that occurs, the court can then convert the case to a dissolution and grant a divorce. At that point, the couple will no longer be married, and each party will be free to marry someone else.

Contact the Law Offices of Bryan Musgrave

If you are considering a legal separation, you should speak to the family law attorneys at the Law Offices of Bryan Musgrave. We can review your case and explain the legal strategies that might work best to help you achieve your goals. Call us today to schedule a consultation at 417-322-2222 or contact us online.

Files under: Family Law
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