Legal Separation v. Divorce

Legal separation and divorce are two separate subjects, even if some of the effects of these two actions are similar. A legal separation can be the right option for couples who want to live apart but are not ready to go through the divorce process for any number of reasons.

Before you decide to get legally separated or divorced in Colorado, you should weigh the benefits and impact of each proceeding first to avoid any mistakes.

Legal separation versus divorce

The main difference between legal separation and divorce is the legal status of your marriage. In a separation, you and your spouse remain legally married according to the State of Colorado, even if you are no longer living together and acting as a married couple. Once a Divorce is final, an approved divorce decree is issued by the court and the marriage is legally terminated. Should one or both parties decide to divorce after a legal separation, the standard divorce process is required to terminate the marriage.

Each approach has its own advantages

Once the divorce is final, the marriage is terminated.  The finality of divorce makes it a viable option for those who are certain their marriage is over and that a divorce will not create a situation where key benefits will be lost by one spouse.However, if there is a chance of reconciliation or some benefits may be impacted, you may choose to legally separate instead.

Common reasons for legally separating as opposed to divorcing include:

  • Either spouse has objections to a divorce for moral or religious reasons
  • One spouse is close to becoming eligible for his or her spouse’s benefits, such as Social Security, and will lose those benefits upon divorce
  • One spouse needs the other spouse’s insurance or health care benefits, and those will be lost upon divorcing
  • There is a significant tax benefit to remaining married
  • The spouses can’t yet file for divorce under Colorado law because they are under a waiting period or don’t meet the residency requirements, but they want a court-approved agreement for now
  • Both spouses find the legal separation agreement less stressful to negotiate than a divorce agreement for now
  • If both parties are considering a legal separation instead of a divorce to take advantage of benefits, you will need to read all the terms associated with those benefits. Some benefits do exclude legally separated spouses from eligibility. If you are unsure about the terms you are reading, contact the plan’s administrator for an explanation.

Your separation agreement matters

Your legal separation agreement is important. It will cover areas like property division, child custody and visitation, and other important areas of your life and your marriage. These issues will impact your family and finances. Because the court will use your legal separation as a template for divorce proceedings, mistakes within the separation agreement can make Divorce more difficult in the future. It is important to treat your separation agreement as you would your final divorce order in terms of what decisions are being made.

Your attorney will work with you to draft an agreement that covers your and is realistic considering your circumstances. He or she will help negotiate with the opposing attorney to reach an agreement on the issues you want the legal separation to address. This process may take some time.

An experienced divorce attorney can review and explain the specific pros and cons of a divorce and legal separation. He or she will do so with full knowledge of your particular situation and how each process will affect you. If you have not yet done so, speak to a sophisticated and experienced family law attorney at The Burnham Law Firm about your situation and all of your options. With this information, you will be fully aware of what the impact of legal separation or divorce will have on your life before the court approves your agreement or decree.