Barbara Sadler: What Is Legal Separation?

A legal separation is a written court order (or an agreement that has been converted into a court order of legal separation) that is filed with the court which addresses the rights and responsibilities of a married couple while they are living apart. Issues that can be addressed in a separation agreement include division of assets and debts, child custody and support, visitation schedules, alimony, etc.. In many ways, getting a legal separation is much like getting a divorce. So why would someone go through the separation process instead of getting a divorce? Some of the advantages of legally separating include:

• Being able to retain your marital status for religious reasons.
• Allowing a couple some times to live apart and see if divorce is actually what they want. As compared to an informal trial separation, a separation agreement establishes how everything will be handled while the couple is apart.
• Being able to continue insurance benefits on your spouse’s coverage. If you are considering getting a separation to retain coverage, be sure to check the policy to see if it addresses what happens if a couple legally separates.
• Retaining certain military benefits.
• Continuing to remain married in order to meet the ten year requirement to qualify for certain social security benefits of a spouse.
• Protecting your financial interests while apart, as assets and debts acquired during a legally recognized separation may be considered separate property. This can be important in states that require a period of separation before a divorce is granted.
• Possible tax benefits by continuing to file taxes jointly.
• If the couple does decide that getting a divorce is the best decision, the separation agreement can be converted to a divorce agreement.
While a legal separation can protect you before getting a divorce, it can also set precedence for the actual divorce. If your divorce case were to go to court, a judge would assume that if you were fine with the arrangements of the separation agreement, then there is no basis to make any big changes with the divorce. Therefore, you should treat the separation agreement the same way you would a divorce, and don’t agree to anything that you can’t live with. This is why it is so important to have your lawyer look over the agreement and discuss the implications of it with you.

Divorce has a heaviness to it that can be intimidating to some people who are unhappy with the condition of their marriage. To completely and permanently end a marriage (and any benefits the marriage may afford) causes many couples to hesitate, even if they no longer want to be together. If you are finding yourself in this situation, you should know that there is a “comfortable in-between” called legal separation. In Utah, legal separation is a legal action that enacts certain elements of a divorce, but does not end the marriage. This can be a benefit for couples who rely on some of the benefits of being legally married. Some people enjoy tax cuts for being married, others rely on their spouse for health insurance, and others may need to be married to stay in the country.

A divorce would have removed all of that and more, but a legal separation does not. Another benefit of legal separation is that it can give a couple room to decide. Sometimes couples just need space and time apart before they can work on the health of their marriage or decide to move forward with a full divorce. Just as legal separation looks like marriage in some ways, it also takes on aspects of a full divorce and should be approached just as you would with a divorce. In particular, you and your spouse not ex-spouse since you haven’t divorced, remember will need to make decisions and come to agreements on many important aspects of your day-to-day lives, just as if you were divorcing. To ensure that your interests are protected, both spouses should seek out legal representation by a divorce attorney.
Legally separated couples will need to consider:

• Parenting plans
• Child support
• Property division
• Spousal support (alimony)
It is within this process that legal separation can become complicated, as if it was a complete divorce. Legal separation involves many of the same technical and legal aspects as divorce – it is not a quick or easy solution, but one that may provide some couples with the best of both worlds (married and divorced). Before committing to legal separation, it’s best to know the advantages and disadvantages of the arrangement. Many married couples view legal separation as a step before divorce, a sort of mediating time that can help them decide whether divorce or reconciliation is the best decision for their relationship. Depending on your situation, filing for legal separation may not make sense, while for others; it’s a better option than divorce.

Disadvantages of Legal Separation

Because of the nature of legal separation, we’ll start with its disadvantages. The three main disadvantages of legal separation include:
• Legal separations are just as complex as divorces
• Legal separations cause just as much stress as divorces
• Legal separations may be unnecessary for your relationship
Though these are all related, each disadvantage touches on a specific aspect of your marriage and pending separation. Here’s how they work.
• Legal separations are just as complex as divorces: A legal separation often requires just as much time, paperwork and legal counsel to complete as a divorce. Like divorces, legal separations involve division of property, including debts and assets. Couples who file for legal separation must go through the same process of division as those getting divorced. That means that for those couples who end up divorcing after the separation, they must go through the process twice. And those who reconcile end up feeling like they already endured the divorce process. Additionally, legal separations involve litigation and trial proceedings just as divorces do. If you and your spouse can’t agree on issues about child support, custody and division of assets, then you’ll be forced to finalize the issues in court. This can be just as taxing as divorce litigation.

Consider this: because of the cost and time involved in a legal separation, couples can usually forgo the hassle by doing an informal separation, or if they feel reconciliation is not an option, moving straight to filing for divorce.

• Legal separations cause just as much stress as divorces: A legal separation may seem like a good test to see if a couple should stay married or divorced, but in reality, it’s a test that many couples fail not because of the relationship itself, but because of the stress involved in the separation process. Because legal separation is just as complicated as divorce, the stress cause by the proceedings could be the final straw for a couple, placing an extra burden on an otherwise delicate relationship. If you’re viewing legal separation as a way to determine the outcome of your relationship, try using an informal separation instead. It’ll give you the same amount of space without the extra hassle of filing for separation.
• Legal separations may be unnecessary for your relationship: Many couples who first ask about legal separation think that it’s a necessary part of figuring out the direction of their marriage. They may think that the formal structure of the separation is like that of a divorce, but without the final dissolution of marriage. Unfortunately, this is often not the case. By employing an informal separation, couples can achieve many of the same goals giving each other more space and deciding if being apart is ultimately the best decision without the cost and commitment of a legal separation. A legal separation may seem like the only way to decide the future of your marriage, but handling the separation informally, even if at first, can be a better way to quickly gauge the status of your marriage.

Benefits of Legal Separation

Even with the disadvantages, there are still legitimate reasons to seek a legal separation. Couples who would like to avoid divorce because of personal, religious or cultural reasons can become legally separated and still adhere to their personal beliefs. Many couples also use separation as a way to skirt healthcare policies. In most cases, divorced spouses may stay on the other spouse’s healthcare plan for a certain amount of time, usually six months or less. But in the case of legal separation, this can be prolonged, depending on a number of factors. Because separation often involves the same amount of stress, cost and time as a divorce does, it’s not always a viable alternative to divorce. Couples who see reconciliation as a likely result of their separation can put an informal arrangement in place, while couples on the opposite end of the spectrum can look more closely at divorce. But for those couples who believe a legal separation is the next best step in their marriage, a family law attorney can help make the process and transition as smooth as possible.

Having a legal separation agreement is financially beneficial step you can take if you are having marital problems and have decided to separate in a state that recognizes legal separation. Have an attorney draw up the legal separation agreement before both spouses sign it, and it should be smooth sailing from there, if you and your spouse easily come to terms. In states that don’t recognize legal separation, speak with a local family law attorney about your options, if all you want is a legal separation. In some states, it is possible to draw up a separation agreement signed by both spouses that would be legal and binding. In some states, the divorce process must begin before the court will recognize any agreement you and your spouse come to. The bottom line is, you want a legal separation agreement that will protect you during a separation in case your spouse fails to live up to their obligations as outlined in the agreement. You want an agreement that will hold up in court should you have to go to court to have it enforced. Along with the peace of mind, there are financial benefits of a legal separation agreement that will protect you as well.

• Tax Advantage When Paying Spousal Support: If you are paying spousal support, those payments can be claimed as a deduction at tax time if the payments are part of the legal separation agreement. If you are merely separated with no legal agreement, any monies given to your spouse cannot be deducted at tax time.

• You Retain Certain Marital Benefits: A legal separation agreement means retaining certain benefits you held during the marriage. Let’s say you are a spouse who is covered under your spouse’s health insurance plan. With a legal separation agreement, it can be written into the agreement that those benefits continue during the period of separation. There is also the benefit of being able to continue to file income taxes as married instead of single. And, if you’ve been married less than 10 years, you can legally separate but remain married until the 10-year requirement is met. This means being able to take advantage of drawing from your spouse’s social security at age 62.

• Who Pays What Is Clearly Outlined: If you and your spouse own a home, who pays for what will be outlined in the legal separation agreement as well as who will live in the home. When maintaining a home there are issues such as mortgage payments, utilities, lawn care and maintenance that need to be considered. In a legal separation agreement who is responsible for what portion of the upkeep of the home is outlined.

• Clearly Stated Boundaries About Joint Accounts: Most couples have joint checking, savings, and credit accounts. A legal separation agreement would define whether or not both spouses still have access to any joint accounts. It may stipulate that all joint bank accounts be closed and each spouse open accounts in their own names. It may also stipulate which spouses pay what monies on any joint credit accounts held by the couple. All issues pertaining to how money is spent and who is responsible for what is outlined so that both spouses will be protected.

• Boundaries for Debt Incurred During the Separation: Most importantly, a legal separation agreement will protect you from being responsible for any debt your spouse acquires during the period of separation if you live in an equitable distribution state. If you live in a community property state, you don’t get this protection under a legal separation agreement.

Legal separation has many benefits and advantages, including providing parameters for co-parenting, child support, and spousal support while maintaining the status of being married. Legal separation also leaves the door open for reconciling or resuming the marriage. Legal separation, which is a contractually defined and court-honored agreement between a couple that has chosen to live apart but opted to remain legally married, is also often pursued when the parties want to stay married for religious reasons, when they want the advantage of documentation of spousal support payments (for income tax reasons), when they want to maintain various insurance coverages, or when they do not want to wait for the state’s statutory period for termination of marital status.