Divorce vs Legal Separation
You and your spouse may come to have irreconcilable differences, but you may still hold up short of divorce. There are so many reasons why divorce is a bad idea: finances, children, shared employee benefits, tax benefits, not to mention the emotional impact of the finality of divorce. Fortunately, divorce is not the only answer. Legal separation is a valid option for many couples, functioning as a sort of “half-way house” between marriage and divorce. It allows the two of you to get on with your lives while leaving future options open. You may later decide to divorce after all, or perhaps even to reconcile.
As with divorce, legal separation requires an agreement — the legal separation agreement — which generally addresses such issues as division of assets and debts, child custody and support, and spousal support. This agreement can be drawn up via a lawyer (or lawyers), a mediator, or simply between the two of you, if you generally see eye-to-eye with each other. However, as part of the legal separation process, the separation agreement is filed at the court, and the terms must be adhered to by court order.
The procedure for filing for legal separation is similar to that for divorce. First, the person who is filing must meet the state’s residency requirement. Second, file a legal separation petition with the court, whether in person, online, or via an attorney. The separation agreement — covering all relevant issues such as child custody and support, visitation, spousal support, division of assets and debts, and any other issues of possible contention — should be filed along with the petition. You and your spouse can file jointly; if only one party files, the other will be served and have a period of time in which to respond. If the nonfiling party wishes to contest or modify the terms of the agreement, he or she has the right to submit a counterpetition.
Once you reach agreement on the terms of separation, you will sign and notarize the separation agreement, and the court clerk will then enter it into the court records. A judge will review and sign the agreement, at which time it becomes binding. If either of you deviates from the terms of your agreement, you can be held in contempt of court.
A legal separation is a great way to give you and your spouse some breathing space as you begin to contemplate separate lives. But this is more than simply a trial separation. Your assets will be separated, and you will each have the right to dispose of your respective allotments as you wish. Your personal interests are fully protected against any actions by your spouse, and vice versa. You can receive (or be forced to pay) spousal support if appropriate during the separation period. The custody of your children will not be determined on an ad hoc basis; it will be mandated by court order, as per the terms of your separation agreement. Finally, your separation agreement can be attached to any future divorce settlement.
At the same time, you can continue to enjoy many of the benefits of marriage. Of primary importance, a dependent spouse can continue to receive medical benefits through the working spouse’s health insurance plan at the same group rates. Spousal rights to Social Security and disability benefits can continue uninterrupted. Final decisions regarding certain jointly held assets, such as a home, can be deferred. If it’s a bad time to sell a home in your area but a divorce would necessitate a sale and division of profits, you can continue to jointly own the home during the separation period at least until the market improves; one of you can continue to live in it.
Best of all, you can both think long and hard about whether you really want to get divorced. You may find, living alone with your half of your assets and years or even decades of memories tormenting you on a regular basis, that you might want a reconciliation after all. It’s easy to get angry at your spouse, even come to despise certain aspects of your spouse’s behavior, during the course of day-to-day life. However, when stacked up against all the disadvantages of divorce, you may still find a way to stick together.
But if a divorce is clearly inevitable, then it’s usually best to get to that point sooner rather than later. If one or both of you already has a new lover, that person will quickly become impatient with your half-measures. Don’t let your chance at happiness with a new partner fizzle because of indecisiveness or fear of the consequences of divorce. You may have considerable work to do in deciding between a spouse and a lover, but if you’ve made up your mind, then don’t let your old relationship ruin your new one.
If you’re facing a divorce, it will likely be one of the most difficult transitions you will endure in your lifetime. A legal separation is one way to slow down the process and give both you and your spouse more time to think about it.
