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Family & Divorce Law

When to Consider Getting a Legal Separation vs a Divorce

By Tolison & Williams / June 23, 2020

Legal separation and filing for a divorce are two distinct and different legal situations, even though the outcomes of each are rather similar. Both of these do involve a filing with the court, and, ultimately, both spouses will be bound by the terms of these decisions.

What's the Difference Between Divorce and Separation?

In short, the legal difference between a separation and a divorce is marital status. With a separation, the couple remains married, even though they may not continue to live together. However, they do agree to separate certain things, such as living arrangements, assets, child residency, and to establish financial support, if warranted.

When two spouses agree to a divorce, the marriage itself is terminated, and the same types of divisions, child custody, and financial support will be a part of that divorce decree.

Deciding between legal separation and divorce usually relates to two factors:

  • Is there a chance that there will be a reconciliation?
  • Would a divorce at this point result in the loss of some critical benefits on the part of either spouse? Examples might be health insurance or retirement benefits.

In these two cases, it is obvious that a legal separation would be a better option than divorce.

When to opt for a Separation

In addition to the two general reasons just mentioned, here are some more specific reasons for choosing separation over divorce:

  • One spouse objects to the divorce, at least right now. This might be for religious reasons, for example.
  • There may be a tax benefit to remaining married.
  • The couple has not been married for ten years, and a divorce will mean that a spouse will not be eligible for social security benefits in the future.
  • The couple does not yet meet eligibility requirements for a divorce in Colorado, such as residency. To get a divorce, at least one of the spouses must have been a resident of Colorado for at least 90 days.
  • One or both spouses find the divorce proceedings to be too stressful at this point but do want a court-approved agreement of separation for now. 

Remember: legal separation involves a formal agreement. It's a more weighted decision than merely deciding to live apart for some time.

Why Having a Formal Marriage Separation Agreement is Important

Separation agreements typically cover such areas as property and asset division, child custody, along with visitation schedules, support payment amounts, and any other unique circumstances a couple might have.

All of these things matter, because, once filed in court, your separation agreement usually becomes a template the court will use for an eventual divorce. As you consider the terms of a legal separation, you should think about what you would want should a divorce occur in the future. You will want to consult with an attorney so that your interests will be protected in the legal separation agreement.

When Divorce is the Better Option

If you are certain that reconciliation is not going to happen, and if you have been married for at least 10 years, your better option may be to simply go through with a divorce. If both you and your spouse can agree on the separation terms, then skipping the legal separation agreement step will save the time and cost of an additional court proceeding.

Which of these is best for you depends on your unique situation. And a qualified divorce attorney can advise you as to your better option. We're happy to answer your questions!

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Tags: Divorce Family Law

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