What is a Legal Separation

What is a Legal Separation?

What is a Legal Separation?

A divorce is a full dissolution of the marriage. When a final divorce decree is entered, the parties are no longer married. Assets are divided, and debts are allocated. Child custody and visitation is determined, and the issue of spousal support is resolved. The wife can return to her maiden name if she so desires. Either party may get remarried.

A legal separation resolves all the same issues as a divorce, but the parties remain married. The assets are divide, the custody issues are decided but your are still husband and wife. Technically, a legal separation in Nevada is called separate maintenance.

A legal separation feels and looks just like a divorce, except with a legal separation you are still married. The wife cannot take back her maiden name, and neither party may get remarried. The relationship status on your Facebook page should be “marriage on hold”, or “thinking about it”.

  1. Health insurance

The most common reason a legal separation is used or requested is when partners no longer wish to live together or share assets as a married couple, but one spouse would like to stay on the other’s health insurance as a beneficiary.

Remember that if you go through a full divorce, you will lose eligibility as a beneficiary under your spouse’s health insurance. Depending on your health situation and/or your eligibility to get health insurance, seeking a legal separation for this reason might be beneficial for you.

For example, if you have a pre-existing condition and are self-employed, and your spouse has a good health insurance policy through their employer, you may consider choosing a legal separation instead of a full divorce.

  1. For religious or personal reasons

We all have different personal and moral beliefs. Some of us do not believe that divorce should be treated as an option to end a marriage, as marriage is intended to be a lifelong commitment. If those beliefs keep you from wanting to pursue a divorce, but you are seeking a separation of your financial assets or life in a permanent way, legal separation may be the right option for you.

  1. As a middle ground step to determine if divorce is right for you

Divorce is permanent. It is a very significant decision. You may be in a position where you are having significant difficulty in your marriage, but you are still not sure if divorce is right for you. Legal separation can give you an opportunity to ‘try out’ living separately, parenting your children separately, and managing your finances separately. After you have had some time apart from your spouse, you may be in clearer headspace to determine whether this is a distance you want to maintain permanently.

  1. Retaining entitlement to federal survivor benefits

Legal separation will allow your spouse to retain their entitlement to your survivor benefits under social security or the U.S. military. This may be a motivating factor for couples who have been together for a long time and do not plan to marry again in their life. If you know that you want your partner to retain access to these benefits even while you maintain separate lives, a legal separation may be the best choice for you.

  1. Filing a joint tax return

Depending on your financial situation, a jointly filed tax return may incur significant benefits. If you file for divorce, you lose the right to file taxes jointly. If this tax situation is important to your financial health, legal separation may be something you consider.

  1. A legal separation is NOT quicker, easier, or cheaper than a divorce

Legal separations are NOT easier. In fact, they can be harder because the court cannot grant a legal separation unless your spouse agrees or under rare circumstances where a legal separation is necessary. The court has very limited authority to force couples to stay married. Granting a spouse a legal separation when the other spouse requests a divorce is not something a court can do easily.

Now couples can agree to a legal separation. If you both agree, then you can file a No Fight Legal Separation the same way you file an Uncontested Divorce. Both parties must agree to a legal separation. This cooperation will cut down on costs as the necessary documents can be agreed to and filed with the court.

  1.  You do NOT need a legal separation to move out of your house

Being married does not oblige you to live in the same home as your spouse. Spouses can move out if they like. 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. You are still married.

Moving out does not change your ownership interest in assets. You don’t give up ownership of your home if you move out. You are not abandoning your spouse or your property if you decide to move out. You are not breaking a law if you move out and decide not to contribute to your spouse’s bills.

Moving out can affect child custody. And moving out can cause child support obligations to kick in. Make sure to talk with a child custody attorney before moving out.

Legal separation has an advantage over simply moving out and living apart. When legally separated, assets and debts are divided the same way in a divorce. Custody, child support, and alimony are also decided.

Moving out without a legal separation leaves these issues undecided which can cause issues in the future. For example, you might move out and be separated for 10 years. After you moved out, you got a better job, saved money in a 401K, and bought a house. You might think all those new assets are your separate property. That is not true in Nevada.As long as you  are married your assets are community property and can be divided evenly in a future divorce. The divorce case of Forrest v. Forrest in 1983 determined the community property does not end until the judge says it does.

When legally separated, assets and debts are divided the same way 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.

A legal separation follows the same legal process of a divorce. Each party to the marriage must file a separation agreement with the courts. Each party’s legal and financial obligations are set forth in the terms of the separation agreement.

Child custody and other marital issues are also put in writing in this agreement. A judge will make final orders as to the status of your separation and its associated terms.

A 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 the other spouse requests a divorce.