Divorce vs. Separation: Which One Is for You?

In marriage and divorce, there is no “one size fits all.” I have had cases over the years where couples have lived like ships passing in the night for many years. They will have little or no communication and no intimacy for years. Every situation is different.

I often have people come in to ask me whether or not to file for a divorce or to just separate. I will give legal advice, but to divorce or separate has to be the person’s decision and not that of their attorney or therapist. 

12 Points to Consider When Deciding Between Divorce and Separation

1. Divorce ends a marriage while separation does not. Think of a marriage as a partnership: everyone shares in assets and liabilities as the years of marriage continue. In Michigan, where I practice, the general rule is that even if parties are separated, the marriage continues and any economic benefits continue. For example, if the parties separate for a number of years, they normally still share in the growth of investments, IRAs, 401Ks, and any other assets. What if a business is growing? These can become very costly issues if a separation lasts for years.

2. Separation can be done with a separation agreement covering specific issues, but parties are still legally married.

3. A postnuptial agreement can be used to set forth a settlement in the event that a separation ends in a divorce. This can spell out property division, support arrangements and other issues, but you have to be careful as to the enforceability of a postnuptial agreement, as the laws differ from state to state. Check with a local attorney where you live for advice on this issue.

4. During a separation, are you working on your marriage?

5. Are you dating during a separation? It is hard to move forward with a new relationship if you are still married, even if you are “separated.”

6. How do you deal with custodial and parenting time arrangements with your children during a separation?

7. I have found over the years that most separations end in a divorce. A separation is really putting at least one foot out of the door. If you really want to work on your marriage, I urge clients to go into marriage counseling and exhaust all possibilities of rebuilding what you once may have had in your marriage. Separating, I believe, makes that more difficult.

8. If you separate, how long will it be for? People often try something and then get stuck, so a trial separation may go on for years with neither party being motivated to really work on the marriage or to go forward with a divorce. 

9. If you separate, you have to make sure that economic arrangements are dealt with. There are normally no court orders and no court involvement, which means that you have to work out support and status quo issues.  In addition, even though you are still married, there are going to be extra expenses to support two households.

10. Whether you opt to separate or divorce, it is important to try to communicate and discuss as many issues as possible. These include child-related issues, if there are children involved. How will you handle time with your children? How informal can you be? How will you handle bill paying? These are just some of the examples of issues that need to be discussed and dealt with.

11. In a divorce, insurance issues must be handled. Health insurance coverage and life insurance will change.  These should be discussed in a separation to make sure that coverage continues. With our constantly changing rules regarding health insurance, it is important to look into these issues as well – whether your are contemplating a divorce or a trial separation.

12. If you are getting a divorce, it is clear, but if you are separating, communication with family and friends is cloudier. What is your relationship going to be with in-laws or with other family members? How will you handle holidays and special family events such as religious events, weddings, and other important life happenings?  These are all things to discuss and consider.

My belief is that a divorce can be cleaner, as it ends the legal relationship and spells out financial obligations. In addition, I believe that most separations are just prolonging the inevitable divorce. 

These are some of my thoughts on this topic. Please share your thoughts and ideas with me as well.