What is the difference between Divorce and Legal Separation?
When meeting with a potential new client I am often told that they have been separated from their spouse for some length of time. They may go on to say that the spouse appears to be spending more money than they think is appropriate.
At that point we discuss the fact that being separated (living apart from your spouse) is not a legal separation and debts incurred by one party will have an effect on both parties.
When the parties obtain a Legal Separation everything that would be discussed and agreed upon in a Dissolution of marriage (divorce) is discussed and agreed upon. Legal separation and divorce achieve exactly the same thing except in a legal separation the parties are still married.
The agreement would include language regarding parenting time, child support and all issues related to your children. Property and debts would be divided and maintenance, if any, would be determined.
Why would a couple choose a legal separation instead of being divorced?
Historically, the reasons were because of one’s religious beliefs and/or the belief that if the parties were legally separated health insurance could be maintained for both parties. Today most employers require that any change in marital status be disclosed to the company.
Some employers may still allow legally separated parties to remain as a “Spouse” on their employee’s insurance, but most do not. If you are considering this possibility, be sure to verify in advance whether or not the employer offers this benefit. Be aware that even if the employer does allow legally separated people to both continue on the health plan there would be no guarantee that the employer would continue to do so in the future.
Once a Decree of Legal Separation is entered by the court it must remain in place for a minimum of 180 days at which time either party can request that a Decree for Dissolution of Marriage be entered.
Both divorce and legal separation have unique issues. I suggest that anyone considering a change in marital status consult with a skilled divorce attorney.