Should I Get a Legal Separation Instead of a Divorce?

Should I Get a Legal Separation Instead of a Divorce?

Earlier we talked about the term “separated” as it is used in the context of divorce.  This should not be confused with securing a decree of legal separation which is an entirely different animal.

In a legal separation, the parties essentially go through all of the same steps as they do when securing a divorce.  They enter an agreement or the court will grant a decree setting out each party’s rights with respect to the children.  The marital property is divided in just proportions or by agreement.  The debts incurred during the marriage are assigned to each party.  The non-marital property is restored to its rightful owner.  There may even be a maintenance award.  The difference in a legal separation is that the court does not take that final step of actually dissolving the marriage.  Therefore, even though everything is divided and the parties may even be sharing custody of the children, they are still legally married and unable to remarry someone else.

There are a few reasons why a legal separation may actually be a favorable choice for some people.  One of the chief reasons is for religious reasons.  Perhaps one or both parties’ religion or denomination discourages or even prohibits divorce, but the parties can no longer remain living together.  I have seen this type of scenario where a wife is a devout believer, but, unfortunately, she is married to an abusive husband with whom it is no longer safer to remain.  A legal separation allowed her to remove herself from the situation without violating her deeply held convictions.

Another situation may be for purely pecuniary reasons.  Sometimes it simply makes good financial sense to get a legal separation instead of a divorce.  One situation in particular where this happens is when one spouse relies on the other for health insurance through the other spouse’s employer.  The cost of similar insurance for the non-employee spouse may be cost prohibitive after a divorce.  The parties can opt for a legal separation and the non-employee spouse should be able to remain on the employer’s health insurance plan.  This may mean there should be some money paid back to the employee spouse if he has some out-of-pocket for the expense or it could be treated in lieu of other maintenance obligations.  I once used this tactic to good effect where the wife was diagnosed with lupus and on several expensive medications.  She was within three years of qualifying for Medicare and we used a legal separation to keep her insured until she could qualify.

Once a decree of legal separation has been entered, it can still be converted to a decree of dissolution of marriage.  After one year (or more) from the date of the decree of legal separation, either party can file a motion with the court asking that the decree be converted to a decree of dissolution of marriage.  Once one party asks to convert the decree to one of dissolution, if it has been a year or more, the court is required to grant the request.

Photo courtesy of Daniel Lobo

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