A common question we receive from clients concerns the difference between a legal separation and a divorce, and the perceived advantages and disadvantages of each action.
When a married couple believes they need some time apart but that the marriage is not yet irretrievably broken and could in fact be preserved in the future, they can seek a legal separation.
When a married couple believes that the marriage is in fact irretrievably broken and could not in fact be preserved, they can only seek a divorce.
So, in plain terms, when a couple believes the marriage still could be saved or that in time they could find a way back together, they can choose the option of legal separation.
The clear benefit of a legal separation is that it provides a couple with a cooling down period, a “time out” if you will, but it does so without leaving one party in financial distress or without access to the children. Spouses also seek legal separation over divorce if they have certain health issues coverage for which might terminate upon a divorce and the ill party may not have the ability to afford new coverage. Further, some spouses, for religious or other personal reasons, resist the finality of a divorce and so choose legal separation, a legal fiction that allows them to say they are still married but, living separate and apart.
Other than the termination of the marriage, the petition for legal separation and petition for dissolution of marriage proceed the same and offer the same remedies – either party can seek an award of maintenance or child support; the court must decide legal and physical custody of the children; the court must divide marital property and debt, including the enforcement of any prenuptial or postnuptial agreements.
Ninety days after the entry of a judgment of legal separation, either party may come back to the court and seek to convert the decree into a judgment of dissolution of marriage. So, if after the “time out” the parties decide they cannot save the marriage, they can ask the court to bring an official end to the marriage – particularly important if one party wishes to marry someone else. On the other end of the spectrum, if the parties do reconcile, upon a joint motion they may set aside the decree of legal separation, which places the parties back at the position immediately prior to filing for legal separation – a married couple presumably living together with the children, and whose joint incomes shall be considered marital property.
Should you need the advice of a divorce and family law attorney or have questions or concerns about your situation, know that we are here to help and discuss those issues with you.