Divorce vs. Legal Separation in Nevada

Posted: 17 September, 2019

Divorce lawyers get a lot of questions about divorce vs. legal separation. Specifically, “would it be easier to file a legal separation?”

With this question, most clients are looking for one of five answers.

  • Is a legal separation a good way to ease into a divorce?
  • Does a legal separation involve less conflict?
  • Can you move out without filing a legal document?
  • How can you keep your spouse’s health insurance?
  • Is a legal separation cheaper than a divorce?

Legal separation is a legal process where debts, assets, financial support, and custody are divided. The separating couple files the settlement with the court (similar to a divorce), but they are not legally divorced. Neither are they entirely married.

A legal separation is a middle ground. It’s like the marriage is on hold.

From the court’s viewpoint, both spouses need to agree to a legal separation. If one spouse files for legal separation and the other spouse counter-files for divorce, the court will almost always award the divorce. There are exceptions where the court has granted the legal separation instead of the divorce so one spouse could keep the other’s health insurance. For most people, the court cannot force one spouse to accept a legal separation when they request a divorce.

Separation vs. Divorce Pros and Cons

Legal separations are usually less contentious than divorces. Most couples are still civilly speaking to each other, although this isn’t always the case.

Keeping Your Health Insurance

The main reason someone needs a legal separation is for health insurance. The ability to keep a spouse’s work insurance is particularly important to older couples not on Medicare or to couples where one spouse has a serious illness.

Divorce courts realize how important healthcare is. The expense and difficulty in getting adequate health insurance for some people will influence a judge to grant a legal separation instead of a divorce.

Employers don’t remove spouses from a health plan because of a legal separation. They only remove spouses after a divorce has been filed.

Trying Out Divorce

Divorce is a big decision. People see it as breaking a huge promise.

Taking small steps, like moving out, separating bills, and sleeping alone allows people try out that decision. Small bites can make the idea of divorce easier to swallow.

You Pay Two Different Filing Fees If You End Up Divorcing After Separating

Legal separations are faster and cheaper than divorces because couples are still on civil terms, most of the time.

Being able to have a reasonable discussion of the division of assets and debts speeds up the process. You spend less on divorce lawyers. You don’t have to argue in front of a judge.

That note aside, if you get a legal separation and then decide to divorce, you still have to file for the divorce. In other words, you end up paying for both the legal separation and the divorce.

If divorce is something both you and your spouse feel is right, look at filing an uncontested divorce instead.

Temporary Limbo Status

Legal separations put your married status in a marriage purgatory. You are neither married nor are you single.

Everything is separate. Your bills are yours alone along with your income. You might be paying child support or spousal support. Any property purchased after the legal separation is solely yours.

But you are not single. You cannot remarry until you legally divorce.

This is a common divorce myth. You don’t need a legal document to move out of the marital home. No papers or official status change is required to move out.

Choosing to move out is not a legal action. You can be married and live in a different house than your spouse. Nothing changes in regards to assets, debts, financial or child custody obligations.

Legal separation has an advantage over moving out and living apart. When legally separated, assets and debts are divided the same way it is in a divorce.

If you have children and choose to move out, be cautious with the custody. Caring for your children three days a week at a minimum can prevent a judge giving primary custody (even temporarily) to your spouse. Click here for more info on leaving your kids and home.

Legal separations are usually cheaper than divorce. This is mostly thanks to couples still being on good terms with each other and not needing to set court dates.

As with divorce, if you have significant assets it can be a wise decision to hire divorce lawyers to review the division of property. If you don’t have assets and both agree to a joint custody schedule, you may not need attorneys.

Significant assets include things like large retirement accounts, real estate, investments, or businesses.

Dating While Legally Separated

Nevada is a no-fault divorce state. That means you don’t need a reason to divorce your spouse. Divorce courts also don’t care why you choose to divorce. If one spouse cheats, that will not affect the outcome of the asset division.

There is no legal penalty for dating while legally separated. It’s the same as how there is no legal penalty for dating while you are married.

If you have a prenuptial agreement in place, review it with divorce lawyers to make sure there isn’t an infidelity clause. Those are the only things that can impose penalties for dating while legally separated.

Whether you choose to date or not after your legal separation is up to you and your moral code. There is no penalty in the legal system.