If you are considering legal separation or divorce, you probably have a lot of questions. The first one might be: what is the difference between a separation and a divorce and which one is right for me?

In a legal separation, a couple is still married but living apart, with a court outlining the rights and duties of the couple on a number of factors (outlined below). With a divorce, the marriage has legally ended. Legal separations are fairly uncommon, but a useful solution for couples looking to work through financial and/or personal issues within the marriage as they consider divorce in the future.

There are many considerations when deciding whether a legal separation or divorce is right for you and your spouse. Here at Ohiku Law, we help people just like you navigate the often complex world of divorce law. Read on to learn more about the differences and similarities between legal separation and divorce and peruse our website for more information.

What is the difference between legal separation and divorce?

There are a number of important differences between legal separation and divorce. The most important difference to understand is that, in a legal separation, the spouses are still married. After a divorce, they are not. Here are some other key differences:

• Health insurance: if one partner is covered under the other partner’s health insurance, they can continue to be covered even if legally separated. The same is true with other key benefits like social security. After a divorce, spouses can no longer share benefits in this way.
• Financial/health care decision-making: when legally separated, spouses are still considered next-of-kin and are able to make important decisions on the other’s behalf. Divorced spouses lose this privilege. 

• Ability to remarry: if legally separate, the spouses are still married and unable to marry someone else. After a divorce, the marriage has been dissolved and both spouses are free to legally marry again.

• Shared debts and marital property: Wisconsin is what’s known as a “marital property state” meaning all property and debts incurred during the marriage are shared between spouses. Legally separated spouses still share marital property and debts. Divorced spouses resolve these issues while ending the marriage.

• Property benefits: legally separated spouses will still benefit from the other’s property should their spouse die. After a divorce, spouses do not retain legal rights to the other’s property.

• Reconciliation: if legally separated, it is possible for spouses to reconcile without having to legally remarry. After a divorce, reconciliation without legal remarriage is impossible.

What similarities exist between legal separation and divorce? 

In both separation and divorce, the court will make decisions on the following elements:

• Child custody and visitation rights
• Division of property as appropriate for the spouse’s situation
• Separation maintenance in relation to child custody and alimony, though with a legal separation these are decided by the court through a “motion pending litigation.”

Trial vs. permanent separation

If you are considering a legal separation, you have a couple of options to choose from depending on your unique situation. Before going through a legal process, you may decide to try what’s called a “trial separation,” an informal arrangement between spouses. Spouses may decide to move forward with legal separation or divorce after a trial separation or may decide to reconcile.

A permanent separation means the spouses have decided to separate permanently. This may mean they decide to file separation paperwork to begin a legal separation or move forward with a divorce. The treatment of property and debt during a trial, permanent, and legal separation can be complex, so consult an experienced divorce lawyer to find out what you need to know.
Whether you are looking into legal separation or divorce, you will want a trusted attorney on your side. I’m Odalo Ohiku and I work hard to set myself apart from traditional family law and divorce attorneys in Milwaukee. The team at Ohiku Law is there when you need us – 24 hours a day, 7 days a week. Give us a call today to get started.