Not all couples get their “happily ever after”. When a couple decides to part ways, they face several paths they can take. Two of the most common choices are legal separation and divorce. While both options basically change the relationship status, they carry distinct legal implications that can significantly impact your future. Therefore, understanding the difference between separation and divorce can help couples decide which option is best for their situation.
This article explores the key distinctions between the statuses separated vs. divorced, helping you make an informed decision.
Let’s Start with the More Straightforward Option — Divorce
In the eyes of the law, divorce is a permanent dissolution of the marriage. This process involves going to a family law court to officially and legally cut all ties between the spouses, including the division of property, resolution of financial obligations, and removal from shared insurance plans. If there are children in the picture, the settlement will also address parental responsibilities, child custody, visitation arrangements, child support, and spousal support.
From now on, the individuals can move on with their lives as singles. This means they are free to remarry, file taxes separately, obtain their own insurance policies, and more.
It’s important to note that in South Carolina, couples must live separately for a year before they can file for a no-fault divorce (unless they can prove grounds for a fault-based divorce, such as adultery, habitual intoxication, or physical cruelty.)
What is Legal Separation?
Unlike divorce, which legally ends a marriage, a legal separation puts the marriage on hold. The key word here is “legal,” as while the couple lives separately, they still go to court to finalize and sign a legal separation agreement. This agreement covers the same aspects as in a divorce case, such as property division, child custody and support, and any other relevant matters they wish to address during the separation.
The most important thing to understand about legal separation is that although the spouses practically live and act as singles, they remain technically and legally married. This means they must still mark their marital status as married when filing out forms, they cannot remarry, they can choose to file taxes jointly, they may retain shared insurance coverage, social security, and pension entitlement, they can decide whether or not to divide property, and they can still inherit from one another.
It’s important to emphasize that since legal separation keeps the couple legally married, legal separation can be reversed. This allows the couple to reconcile and resume their marriage without needing a new marriage license if they choose to live together again.
Legal Separation in South Carolina
In South Carolina, legal separation is officially referred to as a “Decree of Separate Maintenance” or “Order of Separation and Maintenance.” It functions similarly to a legal separation, allowing the couple to remain legally married while living apart. The primary distinction is that, rather than signing a legal separation agreement, the couple signs an Order that specifies all the rights and responsibilities usually addressed in such an agreement.
Although South Carolina law requires couples to live separately for one year before filing for a no-fault divorce, it does not mandate them to formally file for separation before proceeding with a divorce. However, while couples can choose to live separately without this formal decree, having an Order of Separate Maintenance and Support can help protect their financial interests and address visitation and custody issues during the separation period.
The Order can remain in effect indefinitely or until the parties divorce, a spouse cohabits with someone else, or one of the spouses passes away. The terms of the Order can be modified if there’s a significant change in circumstances for either party.
Key Differences Summary: Legal Separation vs. Divorce
Understanding the difference between separation and divorce is crucial for couples considering their options. The following table outlines the primary differences in legal status, living arrangements, and future implications of each choice.
| Divorce | Legal Separation | |
|---|---|---|
| Marital Status | Divorced | Married |
| Living Arrangement | Required | Required |
| Court Involvement | Living Separately | Living Separately |
| Validity | Permanent | Can be permanent or reversed |
| Financial Ties | Severed | Maintained |
| Access to Financial Benefits / Spouse’s Insurance | No | Yes |
| Right to Remarry | Yes | No |
Legal Separation vs. Divorce: Weighing the Options
The choice between legal separation and divorce is a personal decision, influenced by various personal and practical factors. Some couples may opt for legal separation for the following reasons:
- Trial Period: Some couples may not be ready to end their marriage permanently and prefer to try living separately.
- Financial Protection: Legal separation offers financial safeguards while couples navigate their new living arrangements.
- Family Considerations: Families with young children might prefer to maintain legal family unity.
- Retention of Benefits: Couples can continue to enjoy certain financial advantages, such as shared insurance coverage or the ability to file taxes jointly.
On the other hand, couples may opt for divorce for the following reasons:
- Financial Independence: When couples see no financial benefit in remaining married, they may choose to fully separate their finances.
- Full Disconnection: Divorce offers a clean break for those who want to disconnect from their spouse.
- Future Relationships: If either party wishes to remarry, divorce is necessary (remember: legal separation does not terminate the marriage).
Make the Right Choice for Your Family
Deciding to go separate ways is never easy, especially when children are involved. Couples reconsidering their marriage should carefully evaluate the scenarios discussed above to ensure they make the best decision for their unique situation. However, the emotional weight of these decisions can often cloud judgment and make the process even more challenging. If you’re feeling uncertain or overwhelmed, we’re here to help.
Our family law team at Bluestein Attorneys is both empathetic and professional, ready to support you through every step of this journey. From exploring your options and explaining their implications to developing personalized legal strategies and representing you until resolution, we are committed to being your advocate and ally. To schedule your FREE consultation, call us at (803) 674-8817 or contact us online anytime!
