Knowing the Difference Between Divorce & Separation

On the surface, the difference between divorce, legal separation, living under a separation agreement and living separately (without an agreement) may seem obvious, but there are many intricacies involved in each.  It is important to know the difference in order to navigate how you wish to proceed with your own situation.

You may live separate and apart from your spouse, but the terms or formality which you can dos so will vary widely depending on whether you are divorced, legally separated, living under a separation agreement, or just living separately without the benefit of an agreement.


Getting divorced legally dissolves your marriage, leaving you free to marry another should you so choose.  All your assets and income with be distributed by written agreement, or by a decision and order after a trial.  You may be entitled to collect your spouse’s retirement benefits, depending upon the terms of your settlement, or the decision of the court.  If you are covered under your spouse’s medical insurance plan, you will need to obtain your own medical insurance, either through your own employer, the COBRA option, or various private or state plans.

Legal Separation

With a legal separation, a judgment of separation is issued by the court, however, you are still legally married to your spouse.  Your income and assets will be distributed by a written agreement, sometimes called a “settlement agreement” or “separation agreement”.  Depending on the terms of the agreement, and the terms of your spouse’s retirement plan or pension, you may be entitled to collect your share of same.  If you are covered under your spouse’s medical plan, you may be able to remain on same, however, it depends on the plan.  People using this option do so for various reasons ranging from religious beliefs, to needing to stay on a spouse’s medical insurance plan.

Living Under a Separation Agreement

Under this scenario, you are still legally married, there is no judgment of separation, and you live under the terms of a Separation Agreement, that divides your income and assets.  Parties can live pursuant to a separation agreement for any period of time they choose to.  In order to convert it to a legal separation or divorce action, one party must commence an action against the other which would incorporate the terms of the separation agreement.

Living Separately Without an Agreement

With this option you and your spouse simply live separately while still married without the benefit of an agreement.  Since there is no formal agreement, your assets and income are not divided, and your spouse can incur debts that you may be held responsible for. The spouse that provides the medical insurance must continue to do so.  This is a somewhat uncertain state within which to live for any extended period of time as and your marital rights and obligations continue to accrue even though you live separately.  What this means to you, is if you are contributing to a pension, 401K, annuity, or simple IRA through your employer, your spouse’s interest in same continues to grow until such time as there is a separation agreement, or an action for a legal separation or divorce has commenced.

Discussing Your Options With an Experienced Matrimonial Attorney

If you and your spouse are unsure about how to proceed, you should contact an attorney that specializes in matrimonial matters.

It is important to consider all options and what is best for you and your family when deciding whether to get divorced, legally separated, live under a separation agreement or just live separate and apart without the benefit or protection of an agreement or court order.

If you choose to get divorced there are several different ways to do so.

  1. There is a collaborative divorce where the parties, their attorneys, a financial expert, a child expert and an advocate for each party meet together and collectively arrive at a resolution. This is typically the most peaceful method.
  2. There is mediation where the parties meet with a mediator and come to a resolution. The parties then take their memorandum of understanding to an attorney of their choosing to review and convert to a divorce.
  3. Then there is the litigated route, which is typically emotionally charged and the most expensive route.

We at McCabe Coleman Ventosa & Patterson PLLC have matrimonial attorneys with a combined experience in excess of 50 years ranging from collaborative law to highly contested matrimonial cases.

  • Daniel J. McCabe has over 30 years experience practicing matrimonial law and he is able to advise you on the best course of action for your situation.  There are several different methods to resolve your situation and Daniel McCabe can guide you through them.
  • Bernadette M. Davidson has over 18 years experience in contested matrimonial law and family court and can guide you through the waters of litigated divorce matters.
  • Bianca Formisano has over 10 years of experience, much of which has been involved with contested matrimonial and family court matters.

Request a consultation today to hear from an attorney.

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