Legal Separation vs. Divorce

Some clients opt for a legal separation instead of a divorce from their spouse. In the event you want to be separated but not divorced from your spouse, a legal separation may be an option. A divorce would end the marriage, and a legal separation does not. There are circumstances in which a client is not ready to end the marriage but wants to obtain court ordered child support and/or maintenance (formally known as alimony).

In order to file a petition for legal separation the party filing is required to be separate from their spouse through no fault of their own. This means that if you are living with your spouse, or if you are separated from your spouse for reasons which are attributed to you one cannot file for legal separation. There is no requirement that you have to be separated for any length of time so you can file after one day, one month, one year, or longer as long as you are living separate and apart and you are without fault for the separation. A very simple example of such fault would be someone who kicks their spouse out of the home for the purpose of filing a petition for legal separation; however, there are circumstances such as an abusive situation when an abusive spouse is removed from the home under an order of protection filed by the victim’s spouse, and in that case the separation would not be the “fault” of the victim’s spouse even though they requested the removal of the abusive spouse. The circumstances of the separation differ from case to case and the analysis is fact specific.

The court does not have the jurisdiction to order a spouse to pay support or provide other temporary relief without the filing of a petition for divorce or legal separation. A legal separation may be an option if you are not ready to end the marriage but need support during a period of separation. It is important to keep in mind that if one spouse files a petition for legal separation it does not prevent the other spouse from filing a petition for dissolution of marriage. With the competing petitions, a dissolution of marriage will be granted over the petition for legal separation provided the requirements are met for the dissolution. Also a party who files a petition for legal separation can modify the petition to a petition for a dissolution of marriage. Legal separation can also provide some of the same relief as a petition for dissolution of marriage such as retraining order, custody, visitation, and, in certain circumstances, a division of property. There was a time when an important reason for obtaining a legal separation as opposed to a dissolution of marriage was a spouse who was unemployed and had no insurance was able to maintain the insurance benefits of their employed spouse. Since the passage of the Federal Legislative Consolidated Omnibus Budget Reconciliation Act (COBRA), which allows for insurance coverage of a spouse after dissolution of marriage, the maintaining of medical insurance is not as important. It is necessary to check with the spouse’s employer to make sure coverage will continue.