Legal Separation: Differences from a Divorce

One of the questions I get often from clients is about legal separation and what the differences (and even similarities) are from a divorce. As a divorce mediator and attorney, I find that there is a big misconception that in order to get a divorce you have to have a “legal separation” first, so today I want to discuss the differences and the reasons that one may choose to do a legal separation.

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What is a legal separation?

In essence a legal separation is the same process as a divorce except a few different boxes get checked on your court paperwork and instead of being divorced at the end of the process you are now legally separated. This also means that you are still legally married. Thus, you and your spouse would still need to either file married filing jointly or married filing separately (or Head of Household if you qualify for that – talk with your CPA) because the IRS still considers you married.  Additionally, you could not remarry once you’re legally separated because, again, you’re still legally married and can’t have a second valid legal marriage.

If you do a legal separation, you and your spouse would still go through the same steps in mediation of working out all of your agreements, from parenting plan, to support, dividing up your assets and debts and your mediator would draft a legal separation agreement (similar to a marital settlement agreement) that would lay out what you and your spouse have agreed upon. Then everything gets signed and filed with the court.

Something of note is that if you do finalize your separation, and then later you and your spouse decide that you now want to get divorced, you’ll have to start the court process over again, file for a dissolution of marriage and pay the court their filing fees again. Now the agreements that you reached in your legal separation agreement would still be upheld and included for your divorce, but there is additional paperwork, not to mention the filing fees that you’re required to pay again.

How Legal Separation Differs from Divorce

The main difference from a divorce, of course, is that when you complete your legal separation you and your spouse are still legally married such that, as discussed above, you’re filing your taxes as married and some other benefits would still consider you married. One big difference from a divorce is that there is no 6-month waiting period. So, if you finish everything up in 2 months and submit it to the court, then you would be legally separated as soon as the court processes the paperwork and not have to wait the 6 months like for a divorce. Now, to obtain a divorce you do not have to have a legal separation first.

I think that people often confuse a “legal separation” as I’m discussing here with the date of separation and being “separated”. When you file for divorce, you and your spouse must establish your date of separation. That date is when the marriage essentially ends for purposes of length of marriage, community property etc. However, nothing gets filed saying you’re legally separated, it’s just the agreed upon (or not agreed upon as can often be the case) date of separation.

Reasons for Separation vs. Divorce

Now I will start off by saying that I find it very rare that people go forward with a legal separation because there are often not that many benefits. Most people asking about this process falsely think that they must be legally separated for a divorce to begin, as I discussed above. That being said, I find that there are some common reasons to opt for a legal separation:

1. Religious or Cultural reasons

I have had some couples who for religious or cultural reasons are not comfortable with divorce but still want to separate their finances and other things and so a legal separation has been a good solution for them.

2. Insurance

I do find more and more that this isn’t always an option but, in some situations, companies will allow your spouse to stay on your health insurance if you are legally separated. However, I always require that they check and confirm with their company first.

3. Taxes

As mentioned above if you’re legally separated, you’re still filing taxes as if you are married so for some people that may be a benefit that they want to continue

4. Uncertainty

Many times, the couple is not sure they actually ever want to get divorced. So, they do a legal separation, with the understanding that they could always dismiss and vacate the judgment but wouldn’t be in a situation where they had to get actually re-married.

Whether any of the reasons above resonate with you, or you just have questions about whether a legal separation is right for your situation, we can help. Contact West Coast Family Mediation Center for a free and confidential consultation.

by: Amanda Singer, Esq., MDR, CDFA®

Amanda Singer with west coast family mediation center

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