June 2021 - Separation vs Divorce: The Differences & Similarities

When your marriage is irreconcilable, what is your best option: legal separation or divorce?

It is important to note not all states recognize legal separation; New Jersey technically is one of the states that does not recognize a legal separation. However, in New Jersey, couples have three options other than divorce:

• enter into an open-ended separation whereby they negotiate a settlement agreement which becomes an enforceable contract once signed and can be incorporated into a divorce agreement later;
• file a complaint with the court seeking a judge’s order for terms of such things as child custody and support without ending the marriage; or
• file a “Divorce from Bed and Board” complaint, which requires you to cite grounds just as you would in an absolute divorce. Both spouses must agree to this option.

In divorce, the marriage is dissolved by court order after which spouses proceed with life as single persons and can remarry if they so choose.

A separation, on the other hand, does not terminate the marriage; rather, it is a formal arrangement whereby a couple is considered still married but living apart. Remarriage is prohibited without first obtaining a divorce.

The two arrangements do have several things in common:

• spouses live separately;
• finances are separated; and
• issues of child custody, support, and distribution of property can be ruled by court order.

Separations could be a viable option for couples whose religious beliefs prohibit divorce. Financial considerations are another reason to opt for this arrangement. Separated spouses may be entitled to certain benefits (Social Security, pension, military) and health insurance coverage as if still married. Other reasons a couple might choose a separation:

• it can be reversed if the couple reconciles; and
• it can be easier for children to accept and adjust to than a divorce would be.

Because ending a marriage is complicated, couples would benefit from professional counsel when making the decision that best suits them.