Legal Separation vs. Divorce

The other day I was asked “would it be easier to file a legal separation”? The answer depends on which question she was really asking. When clients ask a divorce lawyer about legal separation they are looking for one of five answers. I mean, she was either asking; 1) Whether a separation is a good way to ease into the divorce, 2) Does a legal separation involve less conflict, 3) Can she move out without filing a legal document, 4) How can she keep her spouse’s health insurance, or 5) Are legal separations cheaper than a divorce.

Legal separation is a legal process where debts, assets, spousal support, and child custody are settled. The settlement is filed with the court. But, you are not divorced. And, you are not fully married. You are on middle ground. The eligibility status on your Facebook page should be “marriage on hold”, or “thinking about it”.

I can’t speak as to whether a legal separation is a good way to ease into a divorce. I will say change is difficult and people typically handle change better if done slowly. I remember reading “Who Moved My Cheese”, a business management book about how people like small changes. Divorce is looked at as big decision, it is viewed as breaking a huge promise. Taking small steps, like moving out, separating bills, and sleeping alone, allow you to try on your decision. You can then decide. Small bites seem to make the decision easier to swallow.

I will say a legal separation is “usually” less continuous and can be mediated. Most couples seeking a legal separation are talking civilly to each other. Legal separation are handled like an uncontested divorce.  Although this is not always the case. I have had been involved in some nasty legal separation cases. From the court’s viewpoint legal separation needs to be agreed to by husband and wife. If one spouse files for a legal separation and the other spouse counter files for a divorce the court will almost always award the divorce. The court cannot force a spouse to accept a legal separation when they have requested a divorce. I say “almost” because we have seen cases where the legal separation was granted by the court for health insurance purposes.

You do not need a legal document to move out. You do not need a legal separation to move out. This is a common divorce myth. Choosing to move out is not a legal action. You can be married and live in another house. Moving out doesn’t change your marital status. Nothing changes in regards to assets, debts, financial obligations or child custody obligations. You are still married. Can you move out and leave your kids and home? Read “Can You Leave Your Kids & Home?”

Legal separation has an advantage over simply moving out and living apart. When legally separated, assets and debts are divided the same way it is done in a divorce. Your debts are yours and her debts are hers. Property accumulated by one party after the date of legal separation is a person’s sole and separate property.

The main reason someone needs a legal separation is for health insurance. Being able to keep a spouse’s work insurance is especially important to older couples not on Medicare or to couples with a serious illness. The court’s recognize the importance of health insurance and may grant a spouse legal separation instead of a divorce to keep the insurance in place. Employers don’t remove spouses from a health plan because of a legal separation. They only remove spouses after a divorce has been filed. We are waiting to see how Obamacare changes this issue.

Legal separations are typically less expensive. Because the couples are talking the documents can be agreed to and filed with the court. Saving the expense of arguing in front of judge.

The main downside to a legal separation is the temporary status. You are not married nor are you divorced. You in divorce purgatory. At some point in the future you will probably convert the separation into a divorce or dissolve the separation, restoring the marriage. Both actions require more divorce documents. You cannot get re-married until the legal separation is converted to a divorce.