Episode 34 Transcript: Legal Separation vs. Legal Divorce

In this mini episode, we’re going to talk about three important differences between being legally separated, but still married, and legally divorced.

So, the first is that if you are legally separated, you are still considered legally married, which means you cannot get remarried. If you are legally divorced, and once you are legally divorced, you can get remarried. If it important to you to remarry, you will need to be legally divorced to do so. A legal separation is not going to cut it for you.

Two other areas where there are significant differences between legal separation and a legal divorce. The first is with regard to health insurance. I’ve mentioned this in previous episodes, but when you are legally separated, but still married, generally speaking you are able to remain on your spouse’s health insurance, if you are on your spouse’s health insurance. Whereas when you are legally divorced and your marriage has been dissolved, you are generally not able to remain on your spouse’s health insurance on his or her same plan. You, generally speaking, are able to get COBRA, which allows you to be insured by the same insurer with the same level and quality of plan, but you’re not on the exact same plan. And if, for instance, your spouse has health insurance subsidized by his or her employer, if you’re legally divorced and you’re getting insurance through COBRA, the employer is not subsidizing that insurance.

So there is a significant difference, often, for couples between being legally separated but still married and able to stay on each other’s health insurance plan versus being legally divorced, in which case, if both spouses are on one spouse’s plan, the spouse who’s not the primary person on the plan needs to come off and then can opt to have COBRA or to obtain insurance in some other way.

Final distinction is with regard to taxes. When you’re legally separated, you’re still married in the eyes of the IRS, and you can still file Married Filing Jointly or you can file Married Filing Separately. You may be able to file head of household; that’s something you have to discuss with your CPA. Whereas, when you are legally divorced, you are seen as unmarried in the eyes of the IRS, and the only statuses that would be available to you, filing statuses, would be Single or if you have a qualified dependent, Head of Household. You’re not able to file Married Filing Jointly or Married Filing Separately. And, as we mentioned in the episode on taxes, your marital status on the 31st of December of the calendar year in question is the one that counts for tax purposes.

So, those are the three areas where there are the most significant differences between a legal separation and a legal divorce. The gist to keep in mind is that a legal separation does not end your marriage, whereas a legal divorce does end your marriage.

That’s it for our mini episode on the difference between a legal separation and a legal divorce. I hope this episode was helpful for you.


Episode 35 Transcript: Maintaining Joint Accounts Post Divorce

Episode 33 Transcript: Outside Attorneys in Divorce Mediation