Flowing from concerns regarding the finality of a dissolution of marriage proceeding, one of the more common questions posited by potential clients regards whether filing for legal separation, rather than divorce, is best. Quite obviously, the ultimate decision as to whether divorce is appropriate versus a legal separation is appropriate is up to the client to decide; he/she will be an infinitely better judge of the nature of the underlying relationship with his/her spouse. Legally, however, there are very few circumstances in which a request for legal separation makes sense.
The standard for divorce in Missouri is whether there remains no reasonable likelihood that the marriage of the parties can be preserved, and, therefore, whether the marriage is irretrievably broken. The standard for legal separation is quite the opposite: whether the marriage is not irretrievably broken, and, therefore, whether there remains a reasonable likelihood that the marriage can be preserved.
With respect to similarities, once a legal separation or divorce is granted, both parties may continue to live separately and earn income and accumulate property without the other having any claim thereto. If the parties’ have children, a parenting plan needs to be put in place complete with child custody and child support orders. Property is divided in very much the same way under both circumstances. Further, maintenance may be awarded when appropriate.
With respect to differences, once a divorce is granted, the parties are no longer married. It’s final. With legal separation, the parties do still continue to be legally married. It’s not final. Three (3) options then arise with the entry of a legal separation: (1) it can be later dismissed if the parties reconcile, (2) it can be converted into a divorce petition, or (3) it can be left alone and be made permanent. It is important to realize, though, that under Missouri law you can only be married to one person. In order to re-marry, then, you must be divorced; an order of legal separation is not enough.
Based on the foregoing, functionally legal separation does not often make much sense. However, based on experience, there are circumstances when indeed it may be preferable — e.g., problems of personal faith/conscience, personal apprehension/predilection, etc.