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Divorce can be costly. Legal costs can add up as both partners may need attorneys to sort through paperwork, divide assets or determine custody of children. Legal separation could be cheaper than divorce, but laws can vary from state to state and greatly affect the cost of these two distinct legal processes. Generally, whether divorce or legal separation is cheaper depends on whether you and your partner agree on the terms of your split or need attorneys and courts to resolve your differences.
How Do Separation and Divorce Differ?
An informal separation doesn't involve attorneys or trials. Simply living apart isn't legally binding; debt or property acquired during this time is considered marital property. If your partner spends your trial separation at the Ritz and pays with your joint credit card, you'll share responsibility for that debt.
Legal separations aren't available in every state. Where they are, they work very similarly to a divorce. You file a petition with the court to legally separate, and then work with your partner on a separation agreement you'll present to a judge. If you can't agree, the court creates a final separation agreement that determines debt and asset division, child custody, child support and alimony payments.
There are various ways to divorce, depending on state and local laws and your own preferences. Generally, however, the process involves filing a petition for divorce (and possibly other documents) with the court. You may need to have your partner served with divorce papers; they may have to file a response.
If you agree on the terms of your divorce, you can typically create your own marital settlement agreement (MSA) and file it with the court. You may need attorneys to help work out your MSA. If you can't create a mutually satisfactory MSA with the help of attorneys, your divorce goes to trial, where your attorney represents you and a judge determines your divorce settlement. After a certain time, your divorce is declared final.
Both divorce and legal separation create legal agreements you and your partner must obey. The key difference is that a divorce legally ends your marriage, while a legal separation does not.
Pros and Cons of Legal Separation vs. Divorce
Consider the advantages and disadvantages of both legal separation and divorce before you move forward.
Pros of Legal Separation
- While legally separated, you may be able to stay on your partner's health insurance, file joint tax returns or receive your partner's Social Security survivor's benefits or pension when they die.
- You're not responsible for debts your partner incurs during a legal separation.
- If one partner is not a U.S. citizen, legal separation may allow them to stay in the country.
- Should you reconcile, legal separation can be reversed.
Cons of Legal Separation
- You can't marry someone else while legally separated.
- Unless you state otherwise in an advance directive or will, your partner is considered your next of kin. They can make medical decisions on your behalf and inherit your property when you die.
Pros of Divorce
- After divorce, you're free to remarry.
- Your former partner can't inherit your assets or make medical decisions for you, unless your will or advanced directive gives them that power.
Cons of Divorce
- If you and your partner can't agree on the terms of your divorce, you may need to hire attorneys or go to trial, which can be time-consuming and expensive.
- A partner who isn't a U.S. citizen may be deported.
- A divorce can't be reversed once final.
Is Separation or Divorce More Expensive?
Depending on where you live, you may not have a choice about legal separation. Some states require legal separation before a divorce. Other states automatically convert a legal separation to a divorce after a certain time, basing the divorce settlement on the separation agreement.
The biggest factor in the cost of a divorce or legal separation isn't which one you choose, but whether you and your partner can agree on the terms of your split without hiring attorneys or going to trial.
A divorce where both parties agree on terms is uncontested and is usually the least expensive type of divorce. Divorce can cost from $500 or less for an uncontested, do-it-yourself divorce to $20,000 and up if attorneys or trials are involved. Legal separation costs are similar.
At minimum, petitioning for divorce requires court filing fees, which generally range from $200 to $400. Filing additional documents or having your partner served costs more. Attorney's fees, if legal help is required, vary widely depending on location and experience. In general, family attorneys charge $100 to $400 an hour, with highest rates in big cities.
What if You Change Your Mind?
Legally separating and later divorcing doesn't necessarily double the costs. Your separation agreement can become the basis for your divorce settlement, saving time and money. On the other hand, if your partner decides to contest the agreement, costs will rise. To get back together after a legal separation, simply file a request with the court to reverse the separation, and a filing fee if required.
If you reconcile mid-divorce, you can typically have your request for divorce dismissed by filing a petition and paying a filing fee. Once your divorce is final, it can't be dismissed or reversed. However, you're free to remarry your former partner again.
How to Save Money on a Divorce or Separation
Try these alternatives to save money on separation or divorce.
- Find free or low-cost legal aid: Pro bono assistance may be available in some situations. Visit USA.gov for information.
- Ask about payment plans: Breaking attorney's fees into monthly payments can make them more budget friendly.
- Have your partner pay your attorney fees: Judges sometimes require one partner to cover the other's legal fees—typically, when one partner is stalling the proceedings or there's a major income imbalance.
- Find a flat-fee attorney: Attorneys may charge set fees to prepare and file petitions and serve your spouse, for instance.
- Shop around: Attorneys often offer a free initial consultation, which can help you find affordable representation.
- Ask to waive the filing fee: You can apply to have court filing fees waived if you can't afford them.
- Do it yourself: Completing and filing documents yourself cuts costs compared to having an attorney do it.
- Get organized: Gather documentation of investments, retirement accounts, bank accounts, credit cards, loans and deeds. Create a budget accounting for future expenses, such as rent or child support. The more you do, the less your attorney has to.
You can also choose a less expensive divorce option, such as:
- Summary divorce: A brief marriage with no children, real estate, or major assets or debts may qualify for a summary divorce (or dissolution of marriage). Check your state's laws before you proceed.
- Arbitration or mediation: Divorce mediators help partners craft their own settlement decisions, sometimes with attorneys' assistance. Arbitrators make the decisions for you. Both typically cost less than trials.
- Online divorce: Online divorce websites walk you through completing forms and preparing your settlement agreement and may file forms on your behalf. This costs as little as $150.
Planning Your Financial Future
Price shouldn't be your primary concern when choosing between legal separation or divorce. Your settlement will shape your future finances, so don't scrimp on getting the best possible outcome.
Having good credit can help you rent an apartment, get credit or loans and take other steps toward living solo. Even if your settlement assigns joint debt to your ex-partner, missed payments can hurt your credit score if your name is on the account. Close joint accounts or remove your name from those that are your ex's responsibility. Check your credit score before applying for credit; sign up for free credit monitoring to keep tabs on your credit during this transitional time.