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In general, if you are legally separated, you cannot remarry someone else because you are still married to your spouse in the eyes of the state. Additionally, unless you have a written agreement saying otherwise, you will keep your right to inherit from your spouse should he or she die while you are separated. Although it is rare these days, you are sometimes able to keep specific retirement and insurance benefits your spouse has if you are legally separated, but you would lose those benefits upon a divorce. Check with the plan’s administrators if you are not sure whether a legal separation will allow you to keep benefits you rely on.
Some couples choose divorce instead of a legal separation. However, for others, legal separation is the more logical step because they may not be ready for the stress of the divorce process or they are not sure they want to divorce at the time. If you are not certain which route is the best option in your case, speak to an attorney who has experience with both legal separation and divorce. Your attorney will be able to explain how each action would affect your life to help make the right choice under the circumstances.
Unlike divorce, there is no required amount of time you have to wait for a legal separation. You will have to file a petition in the court, and if both parties agree on most of the major issues, they may file this together. If not, one party can file on their own, and their spouse will have some time to file an answer to the petition in court.
Even if both parties are in total agreement, they still have to prepare and exchange financial disclosures. This document is supposed to include all debts and assets plus your financial information, and it is the basis of the division of property and debts between you and your spouse. Colorado laws call for “equitable” distribution, meaning property and debts are divided fairly but not necessarily evenly. This can be a complicated area of your legal separation agreement, especially if a high level of assets is involved in the process. An attorney versed in high-asset divorces can help ensure your spouse’s financial disclosure is as complete as possible so the property division is handled fairly.
At this point, you and your spouse can have an agreement drafted by your attorneys for the judge to approve if you’ve settled all of the issues. If not, you may need to negotiate through your attorneys or use a mediator. During mediation sessions, a neutral third party will help both parties iron things out. Keep in mind that child custody, child support, spousal support and other matters are addressed in a decree of legal separation, and that this decree is often the basis for the divorce later. It can also be converted into a divorce decree, so it’s important that you do not agree to things you are not comfortable with as you go through the legal separation process. Trying to reverse agreements made during your separation in the divorce process can be stressful and will make the process more expensive in most cases.
After you have legally separated, you can have your separation decree become a divorce decree as soon as six months after the decree’s issuing have passed. The process is quite simple: you must notify your spouse in the required manner that you wish to convert the separation decree into a decree of dissolution of marriage. If your spouse does not formally object, your legal separation decree will become a divorce decree once the court grants the conversion.
A legal separation may be the right route for you if you want to separate from your spouse but aren’t ready for a divorce yet. Speak to an experienced and strategic attorney at Burnham Law about your legal separation to ensure your interests and rights remain protected as you go through this process.