Written By: Stephen L. Cawelti, APC
Your marriage is hanging on by a thread, divorce looks imminent, but then your spouse comes to you with this proposal: let’s first try getting legally separated.
Should you go through it? What does legal separation actually entail? As a divorce lawyer, I’ve had many clients come to me in a scenario and with those exact questions. In order to understand if legal separation is a good fit for your unique situation though, you need to understand the nuances.
What is Legal separation?
Think of legal separation as a divorce, you just don’t complete the last and final step (legally terminating the marriage). In both divorce and legal separation, you divide all of your assets and debts, create a child custody schedule, and resolve financial support matters.
The only thing that varies in legal separation and divorce is the official marital status. When you are legally separated, you are still legally married. You cannot legally remarry until you go back and complete the final step (termination of the marriage).
How do you set up a legal separation?
The process is pretty much the same as divorce, you just need to ensure that you check the right boxes on the forms. If you know what you’re doing, it’s almost as simple as that.
As with divorce, a legal separation can be done on your own, without legal help. But unless you agree about every aspect of your separation/divorce, doing a DIY divorce can end up hurting you in the long run. And even if you do agree on everything, there are many legal issues that can come up that you probably couldn’t even think of at the time of the agreement. A good family lawyer will help to guide you through the separation process (and paperwork) to ensure that your separation is legally sound and that your rights are protected now and in the future.
A good family law attorney will treat your separation like it will eventually finalize into a divorce. This is not because they are rooting for your marriage to end; no attorney with a conscience would ever want that for someone. An honest and good attorney however, understands that the majority of legal separations end in divorce and want to ensure that your agreement is set up to protect you for the long haul.
What Sort of Situations Does Legal Separation Work For?
For most, legal separation is just a lengthier, more expensive path of divorce. That being said, there are some situations that are a good fit for legal separation.
Many individuals legally separate to stay on their spouse’s medical insurance. In recent years however, the insurance companies have caught on to this little trick, and there can be severe penalties (say it with me, “Insurance Fraud”). Some insurance companies allow legally separated partners to stay on the others insurance, so it is important to check with yours whether or not this is the case
Legal separation is a good fit for “religious divorces”, where the parties want to remain married but they live separate lives, and they understand that neither of them will ever marry someone else.
Legal Separation can also be helpful if the parties need the assurance that their financial lives are clear and predictable, without mystery or resentment, while they hold out the possibility of reconciliation with one another. Many of married life’s stresses are based on fear and control over money. With the money issues resolved, some couples feel relieved and more confident about their futures and their relationships, allowing them to reexamine their partnership without the baggage of financial worries.
Baby Step to Divorce
Lastly, I’ve had several cases where a legal separation judgment helped soften the blow of a marital breakup. Sometimes, the person who didn’t want the split can panic, leaving the other party guilt-ridden or just afraid of what might happen if they move forward with an actual divorce. Legal separation can be a step in the direction of divorce without using the “D word”, saving time, money and resources in the right cases.
My Top Advice to Couples Considering Legal Separation?
Sadly, most couples that get to the point of considering a legal separation are ultimately going to divorce. It’s a nice idea, and it does work for some, but not many. Most breakups don’t come about just because of money issues; there’s usually something(s) deeper.
For the majority of my clients who walk through my door, I tell them to first try marriage counseling if they both have any hope that their marriage could work out and that they could resolve their differences. If marriage counseling was unsuccessful, a couple needs to consider how legal separation will help to solve the issues that they could not solve in therapy. For most in that scenario, it only delays the inevitable.
Legal separation, like divorce, can be a difficult experience. The difficulty is lessened when you have a support group and a good attorney to guide you. As someone who has assisted thousands of individuals through complex divorce and child custody cases, I know that it is possible to come out stronger on the other side.