Divorce versus Legal Separation: An Overview
Sometimes, married couples do not want to continue living together, but they are not quite ready to go through the entire divorce process. When a final divorce decree is entered, the parties are no longer married, the wife can return to her maiden name if she so desires, and either party may get remarried. Assets are divided, and debts are allocated. Child custody and visitation is determined, and the issue of spousal support is resolved.
A legal separation can resolve all the same issues, but the parties remain married, the wife cannot take back her maiden name, and neither party may get remarried. There may be compelling reasons why a couple decides they want a legal separation, also called a separate maintenance agreement, instead of a divorce. Some common reasons are:
- Their religion bans divorce.
- One spouse needs to remain on the other’s health insurance plan.
- There are tax benefits to them for staying married.
- The couple needs to be married for a longer period of time in order for one to be eligible for government benefits on the other one’s record, such as in the case of Social Security retirement benefits.
- The residency requirement of the state cannot be met, but the parties want a legal separation agreement as soon as possible and do not want to wait.
- The couple just isn’t ready for a divorce but wants the legal protection they may be afforded by the terms of a legal separation.
A couple can choose to live apart and not take any legal action. If they do this, they are still legally married, and nothing changes about their financial and child care obligations. There can be real disadvantages to this type of arrangement. One party can incur debt, and the other one will be responsible for it. If the children live with one parent, there is no legal way to require the other parent to pay child support.
Some benefits to a legal separation include:
- Assets can be divided and debt allocated the same way it is done in a divorce.
- The credit of one party will be protected against the other party accumulating debt.
- One party can avoid being held responsible for debt incurred by the other party after a separation.
- Property accumulated by one party after the date of the legal separation remains that person’s sole property and will not be included as marital property in a later divorce action.
- Child custody and visitation, child support and spousal support issues are all resolved exactly the same way they would be resolved in a divorce proceeding.
Some states do not have provisions for legal separations. Even in Nevada, which does provide for them, different counties require different forms. There is also a process for rescinding the legal separation in order to either pursue a divorce or resume the marital relationship. An experienced Las Vegas divorce attorney can help you with all the legal paperwork no matter what stage you are at in the proceedings.