The Difference Between Separation & Legal Separation
Many clients file for divorce after believing they are legally separated from their spouse since, many times, a separating couple will live apart from each other before initiating legal action. However, legal separation is not simply living apart from your spouse, nor is it a stepping stone towards divorce. Instead, it is an option couples have for severing their relationship through the courts.
Legal separation, like divorce, is a final resolution to a couples’ separation. In both legal separation and divorce, Colorado does not require fault and, along with residential requirements, both require that the marriage is irretrievably broken. While both enable the court to address distribution of marital property, maintenance, parenting time, and child support, both offer something the other does not.
Why People Decide to Legally Separate
People decide to legally separate rather than divorce for many reasons. Some people are guided by religious beliefs while some are conflicted by their personal feelings regarding divorce.
Where some couples may wish to push through the rough waters and continue the relationship, hoping the storm will pass, other couples may be under financial strain. When this is the case, couples may prefer legal separation since debt and property acquired by the legally separated spouses stays separate, as it would following a divorce. Alternatively, if the couple merely lives apart from each other without completing legal action for legal separation, debt and property acquired generally remains marital.
Other couples base their decision on medical and financial benefits only available through their spouse’s employment. While a divorced spouse loses their medical, dental, and other health coverage or insurance upon final decree, a legally separated spouse typically retains the insurance their spouse provides. Similarly, the Uniformed Services Spouse Protection Act, for military benefits, and Social Security, for death benefits, require a couple be married for at least ten years before the spouse is eligible to receive any of their share of benefits. As such, legal separation suffices for marriage with regard to these plans.
Legal Separation is Not a Divorce
However, a legally separated couple is not divorced. For purposes of marriage in Colorado, parties to a legal separation cannot marry another person. It is also possible for either spouse, during legal separation proceedings, to request a divorce instead.
But it is important for couples hoping to separate to know that the process for legal separation mirrors divorce. With the same 91 day wait period required for divorce, there is no guarantee the process will be simpler or faster. Separating couples should take the time to consider both options when starting on the road to finalization.