Despite its disadvantages, legal separation, in one form or another, is an option in over forty states. So, although the disadvantages of legal separation are considerable, it’s obviously a good option in some cases.
Additionally, if a state doesn’t allow legal separation, many couples sign separation agreements that may be enforceable in civil court. So, no matter where you live, it’s good to know the advantages and disadvantages of legal separation before you sign on the dotted line.
Legal Separation Nuts and Bolts
Basically, a legal separation order is exactly like a divorce order, except a separation order doesn’t legally dissolve the marriage. Moreover, the procedure is usually the same. This procedure includes:
- Filing and serving the petition for legal separation,
- A temporary hearing, during which the judge makes interim child support and other orders,
- Discovery, which gives each spouse a chance to uncover the other spouse’s hidden financial or other secrets,
- A social worker’s investigation that ends with a child custody and visitation recommendation, and
- Resolution, which is usually an out-of-court settlement.
To some couples, legal separation is a test-the-waters divorce, so they can experience life apart first hand and decide if it’s better than married life. To some couples, legal separation is a pre-divorce procedure. Some states have long divorce waiting periods.
Furthermore, a judge may modify legal separation orders later, if financial, emotional, or other key circumstances substantially, permanently, and unexpectedly change.
Legal Separation Advantages
Morality is one of the biggest advantages of legal separation. 20 percent of Americans believe divorce is morally wrong, at least in some cases. Legal separation gives these people an option to end a marriage gone bad.
This procedure has financial advantages as well. As mentioned, child support and alimony orders in a legal separation decree are enforceable in family court. Additionally, people who are legally separated from their spouses usually have no obligation to pay the other spouse’s debt. Finally, many people don’t want to live together, but they want to remain legally married, mostly for group health insurance purposes.
If these advantages are appealing, it’s important to get the other spouse on board before filling. Otherwise, the other spouse simply counterclaims for divorce, and this entire discussion is moot.
Disadvantages of Legal Separation
“Separation:” sounds easier and less burdensome than “divorce.” But legal separation is not easy. In fact, in most cases, the disadvantages substantially outweigh the advantages.
Inability to Remarry
Many people file divorce paperwork because they found another person they want to marry. That’s obviously not possible if a person is already legally married.
On a related note, dating while separated is not easy or advisable. Most people aren’t interested in a dating partner who’s legally connected to another person. Furthermore, if the couple later divorces, pre-divorce dating could haunt that person.
We touched on this point above, when we mentioned divorce counterclaims in legal separation cases. But there’s more.
With the exception of legal marriage dissolution, which is automatic in a no-fault divorce, legal separation and divorce involve the exact same issues. Therefore, most lawyers charge as much for legal separation as divorce. Then, if a separated spouse files for divorce later, the meter starts running all over again.
In simple terms, if a legal separation ends in a divorce, the spouses basically pay for the same thing twice.
Legal Separation Doesn’t Have a No-Fault Option
This disadvantage might be the biggest one. We also mentioned no-fault divorce above. Most state laws use words like “irreconcilable differences” or “insupportability.” In other words, both spouses were partially at fault. It doesn’t matter if the division was 50-50 or 99-1.
In most states, the no-fault law only applies to divorce. So, a petition for legal separation must cite a reason like cruelty, abandonment, or adultery. Many spouses bristle at such labels. Other spouses understandably don’t want to air their “dirty laundry” in a public court.
Disadvantages of Legal Separation Frequently Asked Questions
What should you not do when separating?
- Do not make impulsive decisions: Avoid making important life decisions in the heat of the moment that you may later regret.
- Do not neglect your finances: Don’t ignore financial responsibilities or joint accounts, as they can become contentious issues.
- Do not use children as leverage: Avoid involving children in the conflict or using them to negotiate terms with your spouse.
What happens if you separate but never divorce?
If you separate but never divorce, you remain legally married and cannot legally remarry. Additionally, you may be held responsible for your spouse’s debts, and any property or assets acquired may still be considered marital property, depending on your state’s laws.
Can you get back together if you are legally separated?
Yes, you can get back together after a legal separation. Couples may reconcile and decide to end their separation, resuming their marriage as it was prior to the separation. They might need to notify the court to reverse any legal separation agreements or orders.
Do I have to support my wife if we are separated?
During a separation, you may be required to support your wife, especially if there are court orders for spousal support (alimony) or child support. The obligation to provide financial support is often based on various factors including the length of the marriage, the needs of the spouse, and the earning capacity of each partner.
Can a legal separation automatically convert into a divorce if not reconciled?
No, a legal separation does not automatically convert into a divorce if the parties do not reconcile. To end the marriage, one of the spouses must take action to file for divorce and follow the legal process to have the marriage officially dissolved.
Legal separation vs divorce, they are separate legal entities; a legal separation is a court order that mandates the rights and duties of a couple while they are still married but living apart, whereas a divorce legally ends the marriage.
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