Whether to file for a legal separation or divorce is a complicated decision that you need to discuss with an attorney. In either case, there has been a break down in the marriage. I recently had a client who filed for divorce but during the mediation process, we agreed to convert the case to an action for separate maintenance. The advantage to my client’s wife was that she was able to maintain her health insurance through my client’s former employer from which he was retired. Be sure to check with the employer, human resources or the health care company directly to ensure benefits will not be suspended in the event of legal separation.
Legal separation does result in a final division of marital assets but the parties are still married and therefore cannot re-marry. If you have gone through a legal separation, but you later decide you want to divorce, you can petition the court to convert your judgment of separate maintenance to a divorce judgment.
In addition to not being able to re-marry, one other potential pitfall of legal separation is cost. It is rare for people who are legally separated to reconcile though it does happen. So, if you’re in the majority, you may want to consider saving yourself some money (and aggravation) and simply file for divorce rather than separation because the likelihood of divorce is so substantial. Again, this is a personal choice and the client must decide which route to go.