Even though your marriage may be deeply troubled and being with your spouse has become a living hell, divorce may not be in your vocabulary. There is however another option that may work for you: a legal separation. Here’s what you need to know about legal separations.
Let’s start with an understanding of what is a legal separation. It’s different from the physical separation that often occurs in the early stage of divorce when one spouse moves out of the marital home. A legal separation means working through the legal process that exists where you live, to formally separate which may entail you negotiating the division of your assets and liabilities and creating a parenting plan. It may also give you the option of changing your name. Thus, a legal separation can be essentially the same as getting divorced except that you are still legally married and as such are not free to marry another.
Since you are negotiating the same things you would be in a divorce process, a legal separation may not be any less painful and nor is it likely to save you legal fees. Depending on the laws where you live, it may not be any quicker than getting a divorce but it may help you overcome some other obstacles to transforming your relationship with your spouse.
People don’t generally seek out a legal separation. That could be because it’s divorce with which people are most familiar and awareness of legal separation as an alternative is low. It’s most likely to come up through a discussion with a divorce professional because of someone’s specific circumstances.
Perhaps the most recognized reason for legal separation is on religious grounds. That’s because even though you and your spouse separate your lives, you are still married and as such have maintained your wedding vows. I recently heard from a lady who was moving out of the marital home and was clear that her faith prevented her from asking for a divorce. She intended to file for legal separation. When I asked her how she would feel if her husband said that was unacceptable and that he wanted a divorce she said that would be fine. If he filed for divorce she would not object, she just couldn’t be the one to do that.
Legal separation also comes up as interim step towards divorce. Some couples find it emotionally easier to agree on a legal separation recognizing that a full divorce may be likely in the future. One situation this comes up in is where one spouse has a chronic, severe mental illness that makes continuing to live together intolerable for the other spouse. A legal separation may offer a more compassionate way of ending the marriage while still continuing to provide emotional and financial support.
There can also be some very real, tangible benefits to holding off a full divorce: you may be eligible for benefits if your spouse is in the military and you’ve been married for ten years or more. You may also become eligible for social security benefits by staying married for ten years. However, eligibility rules for these benefits do change so if this is your motivation for a legal separation it is advisable to make sure you have the facts straight before proceeding. And if there are any grey areas then evaluate whether simply staying married for the purposes of securing these benefits is a viable option.
Another situation in which legal separation comes up is to shield financial assets from an imprudent spouse such as one who is dealing with an addiction or a mental illness such as bi-polar which can lead to impulsive, excessive and expensive spending sprees. Being legally separated may mean you can segregate the assets you have and insulate yourself from debts incurred by your spouse. It may also be possible to protect yourself from medical bills incurred by your spouse.
Historically, a legal separation has been used by couples as a way of leading separate lives while maintaining health insurance coverage through insurance provided by a spouse’s employer. The need for this may have decreased with the implementation of the Affordable Healthcare Act however, questions of cost and coverage benefits may make this still worth exploring as an option. That would likely mean understanding how a particular insurer treats legal separation and understanding that the picture could change if the spouse’s employer changed their insurance provider.
A legal separation may bring clarity in some areas, particularly emotionally but your marital status may cast a shadow on some other areas. For example, whether you file your taxes as “married” or “single” is a question you’ll need to discuss with your tax professional.
Unfortunately, it’s still common practice for many businesses to ask for marital status. Most of the time the available responses are a confusion of status and life experience with no one answer being truly accurate. Furthermore, the reason why this information is required is often unclear. If there is no option for “separated,” then you will want to ask for specific guidance from the business as to their normal practice and understand the consequences for inaccurately describing your marital status. This would also be true for government agencies such as applying for a passport.
Moving from a legal separation to a full divorce can be a very simple process. In Colorado it can done unilaterally by one party but since it is a legal process you would need to check on the rules where you live and it could get complicated if your legal separation was granted in one state and you are now in another state, or perhaps country.
Deciding to end a marriage is rarely an easy decision and while evaluating legal separation means more research, it could provide a way to end your marriage in a way that feels best to you.
For another resource on legal separation versus divorce, try this episode of my Conversations About Divorce radio show with Boulder-based attorney Michael Travers. If you’re trying to decide if divorce is right for you then you may also find my free audio program, 5 Ways To Know If Divorce Is Right For You helpful. You can get access to that here.