Many couples who are having marital problems wonder if they should file for separation first, and then decide whether or not they want to get a dissolution. While this idea sounds like a good way to test the waters before splitting up permanently, a legal separation should not be considered a stepping stone to divorce. While a separation may work for some couples who want to avoid dissolution for personal or religious reasons, most couples considering a separation are better off actually ending their marriage.
What is a Legal Separation?
A legal separation has a lot in common with a traditional dissolution. One (or both) of the spouses will still need to file a petition with the court that begins the legal case. During that case, the couple will have to divide marital property and debts, come up with a parenting plan for any children, and decide on child support or spousal support arrangements, much like they would in a dissolution. The couple may also be required to attend hearings or mediation sessions. At the end of the case, the judge will either approve the couple’s settlement agreement, or set the couple’s case for trial to decide any outstanding issues. For both causes of action, the court will issue a Decree or official statement of the rights and obligations of each party.
The main difference between legal separation and dissolution is that in one, the parties are still “married” and in the other they are not. Because they are married, the couple can still file their federal income taxes as a married couple, can still be covered by each other’s health or life insurance policies as a married couple, and can still inherit from each other if one spouse dies without a will.
Why Get Separated?
Most people who choose to get a legal separation do so for religious reasons. Some religions believe that divorce is a serious sin, and couples in these religions may face consequences (like excommunication) if they filed for divorce. Legal separation is a compromise that allows the couple to live separately, care for their children, and divide their property without offending their religion.
In other cases, legal separation may be prudent if a divorce would cause one spouse to lose valuable benefits. For instance, a spouse’s immigration status may be jeopardized if he or she got a divorce. Or, a spouse may need to remain married in order to receive spousal military benefits or medical insurance coverage. In these situations, the couple may agree to separate rather than divorce.
But remember, a legal separation is also as final as a dissolution. If the couple wants to reconcile, they must take court action to change the decree of legal separation. Simply getting back together does not undo the division of property, end a parenting plan, terminate child support, or change spousal maintenance obligations.
Understanding Your Options
If you are unsure if you and your spouse should separate or get a divorce, talk to the attorneys at Ashby Law. Our lawyers help clients work their problems out together through the use of traditional divorces, collaborative divorces, legal separations, mediations, and arbitrations.
If you would like to learn more about legal separations and your options when splitting from your partner, the attorneys at Ashby Law can help. Contact us today by calling 509-572-3700.