Many states offer married individuals the option of filing for legal separation as opposed to divorce or dissolution of marriage. If you are unhappily married, you may wonder why there are two paths and which one you should pursue. Before you make a choice, you should understand the key differences between the two.
Creation of Legal Separation as an Alternative to Divorce
While there are well-known social, cultural, and religious reasons and support for marriage, marriage is fundamentally a relationship, defined by law, and entered into pursuant to legal requirements. Accordingly, it is the state, through its court system, that determines whether and when that relationship may be terminated and under what circumstances.
Sometimes, married individuals may not want to live together but are not ready or able to terminate the marriage. They can choose to live apart without involving the legal system, but they may want to formally preserve and clarify certain legal rights. To address that situation, many states have established a procedure for legal separation allowing courts to determine the rights and interests of such couples.
Physical Separation versus Legal Separation
Physical separation occurs when the parties are no longer residing together. The rights and obligations created by marriage do not necessarily cease with physical separation. For example, each spouse, whether living together or not, owes the other a duty of support for the necessities of life (i.e., shelter, health care, clothing, food). Physical separation alone does not terminate or eliminate this obligation. The parties must provide such support until the marriage is terminated or until the parties are deemed legally separated.
Additionally, physical separation does not create legal property interests. During marriage and physical separation, any property owned solely by one spouse remains his or her property unless it is gifted to the other one, or otherwise transferred. The owner-spouse may sell, mortgage, or otherwise convey the property to anyone. (Note this does not apply in community property states.)
In contrast, parties can acquire rights to the other spouse’s property, and support obligations can be changed during the divorce or legal separation process.
General Considerations
Some individuals elect legal separation as a more appropriate final, or intermediate step towards redefining their relationship with their partner. Common reasons for choosing legal separation over divorce are religion, uncertainty about whether to divorce, and a desire to continue functioning as a unit for the benefit of children. Legal separation offers the opportunity for a spouse to be fundamentally and legally independent from the other spouse while reserving the option of maintaining marital benefits for divorce at a later time.
Financial Considerations
Typically, divorce results in the termination of financial benefits that only married individuals are eligible to receive. For example, many employers offer family health insurance as an employment benefit. This benefit might end or certainly become much more expensive if coverage is continued under COBRA. A legal separation, as opposed to a divorce, may permit such insurance coverage to continue affordably. This might be a good reason to pursue legal separation rather than divorce, particularly for individuals with chronic medical conditions for whom alternative coverage might be prohibitively expensive or unavailable.
Other financial considerations might include the ability to file taxes jointly rather than separately to take advantage of tax savings.
The Legal Separation Process
Legal separation will usually follow the same procedural track as a divorce. Typically, a summons and complaint is prepared and served on one of the spouses, but instead of requesting a dissolution of marriage, the requested relief is a legal separation and appropriate termination of each spouse’s rights.
Ordinarily, parties believing that separation rather than divorce is a better route to pursue will negotiate and finalize the separation agreement rather than litigate. Upon review by a judge, the separation agreement will be approved and entered as a court order.
Separation agreements can cover any number of issues but typically include provisions for ongoing financial support, the apportionments of assets and/or liabilities, and care, custody, and financial support of minor children.
While legal separation is not commonly pursued, under appropriate circumstances it may provide an effective alternative to the finality of divorce. An experienced matrimonial attorney can help determine which option may be best in your circumstances.
If you are considering legal separation or divorce, contact us for a consultation.
