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A legal separation is a process that is similar in nature to a Dissolution of Marriage, or divorce. Although legal separations are sought by couples less often than divorce, the legal separation offers some distinct advantages that are attractive to couples facing unique circumstances.
The process of obtaining a legal separation is almost the same as the divorce process with few exceptions—one of those exceptions being that a Petition for Legal Separation is filed instead of a Petition for Dissolution of Marriage. Once the Petition for Legal Separation is filed, the Court will divide assets and debts, award maintenance and attorneys’ fees where necessary, enter orders for child support and allocate parental responsibilities—just as the Court will do in a Dissolution of Marriage case.
In theory, a legal separation is exactly what its name suggests. A couple who has obtained a legal separation is formally separated in the eyes of the law. However, the marriage is not severed. On an emotional level, this is attractive to couples who are not yet ready to give up on the marriage completely but who desire to live separately in all other ways.
The most important distinction between a Legal Separation and a Dissolution of Marriage is the end result. Instead of obtaining a Decree of Dissolution, the parties obtain a Decree of Legal Separation. If, after six months, either party decides that they wish the Legal Separation to become a Dissolution of Marriage, they can simply file a Motion with the Court asking that a Decree of Dissolution of Marriage be entered. The Court will turn the legal separation into a divorce as long as the other party has been notified.
Even after understanding the differences between a Legal Separation and a Dissolution of Marriage, it is hard for some people to understand why someone would ever go through the same process as a divorce just to get a legal separation. Here are some examples of unique circumstances where a legal separation may be an attractive option:
- A husband and wife feel that they are still in love with one another but one of them, let’s say the wife for this example, has a severe substance abuse problem. The husband wants to protect himself from the financial devastation that often arises from substance abuse and seeks a Legal Separation so that the marital assets are divided and so that he cannot be held responsible under the law for debts created by the wife.
- Applying the same facts as above, the wife is recovering from her substance abuse problem but has “fallen off the wagon” on numerous prior occasions. The husband is committed to her and the marriage but has had it with the failed recoveries. He wants to obtain a legal separation so that a dissolution of marriage can be entered without difficulty if the wife returns to substance abuse.
- A husband and wife are resolved that their marriage has been broken and that it cannot be salvaged. However, the husband has just discovered that he has a terminal illness. If the parties obtain a divorce, the wife’s employer will not provide the husband with healthcare coverage because he will no longer be a qualified dependent. The couple seeks a legal separation because her employer will continue to cover the husband since technically the couple is still married.
- A husband and wife feel that obtaining a divorce is wrong for religious or ethical reasons. They seek a legal separation that will allow them to separate themselves financially without breaking their marital vows.
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