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What is Legal Separation and is it Right for Me?

thread-1476487-300x194By:  Jessica A. Saldin

In a prior post I discussed the effect a long-term physical separation may have on your Colorado divorce case.  A physical separation is not a legal process and simply refers to a period of time when you and your spouse lived apart.  In contrast, though, there is a legal process- known as a legal separation- that can be pursued instead of a divorce.  A common question is how a legal separation differs from a divorce case.  

Procedurally, a divorce case and a legal separation case are very similar.  Both start with the filing of a petition and obtaining personal service over the other party.  Both cases start with an initial status conference and an order for mediation.  Ultimately, if the parties are not able to resolve the case by agreement, both a divorce and legal separation requiring a permanent orders hearing to let the judge make the ultimate decision regarding the various relevant issues. 

In a legal separation, determinations still need to be made about parenting time and child support (if there are children of the marriage), spousal support, the division of property and debt, and attorney’s fees.  In other words, it is not as if, by pursuing a legal separation, you can avoid issues of spousal support (also known as maintenance/alimony) nor can you avoid decisions about who keeps what property items and who is responsible for paying what debts.  In these ways, a legal separation is not much different from a divorce case.  One key difference to keep in mind is that, with a legal separation, you are not formally divorced.  Therefore, you would need to convert the legal separation to a divorce (through a process discussed further below) before you can remarry someone else.  However, you also cannot “undo” a legal separation to reinstate the marriage.  In other words, if you finalize the legal separation process but then reconcile and would like to remain married, you would still need to remarry.

Therefore, some may ask, if the process is so similar to a divorce, why would I pursue a legal separation instead of a divorce?  One reason some people consider a legal separation is due to their system of values/beliefs.  If a person does not want to be divorced for religious reasons, or other reasons due to their own personal beliefs, a legal separation process may be more fitting for them.  Another reason people may pursue a legal separation is for emotional reasons.  If it is difficult for them, or if they know it is difficult for the other party, to acknowledge the finality of a divorce, a legal separation may be an easier process for them to pursue.  A final reason people may pursue a legal separation over a divorce is for health insurance reasons.  If one party is providing health insurance for both parties through employment, there are some health insurance policies that may allow the spouse to remain insured if the parties are only legally separated instead of divorced.  However, this is not something allowed by every policy, so if this is something you are considering, it is very important you confirm this is allowed by your policy before proceeding with the legal separation.  

A very important consideration is the fact that a legal separation can be converted to a divorce six months after the decree of legal separation is entered.  This is basically an automatic process- one party simply has to submit the request to the court and there is really no basis to object to such.  This is a very important consideration if you are pursuing a legal separation for health insurance reasons.  For example, sometimes both parties agree to pursue a legal separation instead of a divorce and their final agreement states that one party will keep the other party on their health insurance for a specific period of time.  However, if that party then, after six months, converts the legal separation to a divorce, the health insurance policy will not allow the former spouse to stay on the insurance policy.  If the former spouse then pursues a contempt action- accusing the other party of violating the order- the party that was supposed to keep their former spouse on the insurance policy may argue they were not able to comply, which is a defense to a contempt action. The party that was supposed to be able to stay on the insurance policy may then have no recourse.  Therefore, if the purpose of pursuing a legal separation is to be able to stay on insurance, it is very important that any agreement have specific protections in place as to what is to occur if the other party tries to convert the legal separation to a divorce (for example, the agreement could state that the other party is responsible for paying the difference between the premium for the current insurance policy and the premium for the insurance policy the former spouse will have to obtain if the legal separation is converted to a divorce).  The other thing to keep in mind, though, is that this is not an order a judge will be inclined to enter at any hearing.  Therefore, this will generally only occur if both parties agree as part of resolving their legal separation case.  

Finally, a legal separation process itself requires the agreement of both parties, meaning if one party wants to pursue a divorce instead, the court will allow the case to be a divorce case and not a legal separation case.  There are circumstances where a legal separation may suit your needs more than a divorce case, but if that is what you are considering, it is important that you do your research and make sure a legal separation is the best fit for you.

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