Legal Separation or Just Live Separately?

If you and your spouse have decided to live separately, but you’re not quite ready for a divorce, you might want to know if you need a legal separation or whether you can just simply live apart.  Every situation is different, but there are some general reasons why legal separation may be advantageous to you.

What is legal separation?

In short, legal separation involves going through all the steps you would go through to get a divorce, except the marriage isn’t actually dissolved.  The court will divide your assets and debts, put a parenting plan in place, and can set alimony, as well as provide most other relief you would expect in a divorce.  In addition, once you’ve been apart for two years the length of separation becomes grounds for a divorce.

Why not simply live separately?

Some people are able to live apart with no problems.  However if the two of you were able to agree on all the issues, it’s likely that you wouldn’t be separating in the first place.  Here are a few reasons why a legal separation may be a good idea:

It’s less dramatic:  If you’re not sure you’re ready for a divorce, this would be a less dramatic step that would make it much easier to reconcile later if the two of you patch things up.  If that doesn’t happen, you will already have a start on the terms of the divorce.

Children:  Legal separation may be less traumatic for the children, as you’ll be preserving the family unit (at least in some form).  Also, if you do decide to make the division permanent, this may give the kids more time to adapt to the inevitable lifestyle changes.

Insurance:  It may be possible to keep both spouses on the same insurance plans if they are legally separated, but not divorced.  This is something that you would need to investigate with your health insurance carrier, as policy terms can vary greatly.

Property protection:  Property you acquire while you’re still married but just living separately will be considered marital, and will be subject to division in your divorce.  However, during a legal separation the property you acquire will be considered separate property.  Your spouse will have no claim on your new stuff, leaving you free to do things like redecorate your home, invest your earnings, or anything else you chose to do without worrying that your new assets will be divided.

Religious reasons:  Some faiths have strong views on divorce, and a legal separation may be a way to live apart from your spouse without violating any religious doctrines.

As I said above, each situation is unique.  If you are considering a separation you really should seek some advice.  There are reasons why you might be better off to just get divorced.  For example, if one party is planning to date, the grounds of adultery can still arise during a legal separation.

If you are in this situation and you’re not sure what to do, contact me to find out how I might be able to help you.

1 comment

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