Tag: separated

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

Are We Separated?

Are We Separated?


I often see confusion among clients about the requirement that parties be “separated” for sixty days before they can be divorced.

The statute that sets out the requirements for the parties to get divorced requires that “No decree of dissolution of marriage shall be entered until the parties have lived separate and apart for 60 days.”
Many people get very confused by the “lived separate and apart” portion of the statute.  They incorrectly believe that it means that they cannot divorced until one of them moves out of the marital residence.  Admittedly, that is a pretty reasonable assumption based on the plain language of the statute.  However, the statute goes on to say that “[l]iving separate and apart shall include living under the same roof without sexual cohabitation.”  In other words as long as you and your spouse are not engaging in sexual relations, you can be considered “separated” for purposes of securing a divorce.
This can be very important in a situation where the parties do not have sufficient means or resources to actually establish separate residences.  While this may solve the problem of how a couple can get a divorce without someone being immediately forced out of the house, it can create a whole litany of other problems.  First, it can create a powder keg situation.  Obviously, if you are getting a divorce, you and your spouse are not exactly getting along.  Being forced to remain together can increase that stress.  This stressful situation could create more tension (and litigation) driving up costs and defeating the whole point of continuing to reside together.  It could even explode into a domestic violence situation.
Although no one actually has to move out in order to be separated for divorce purposes, it may be better if one party does vacate the residence.  Explore your options and discuss it with your attorney before deciding what is best for you.
Photo courtesy of Justin Kern