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What is the Difference Between a Legal Separation and a Divorce?

The Harris Law Firm

There is a lot of misunderstanding as to the difference between a “legal separation” and a “divorce (Dissolution of Marriage).” Sometimes, people think that a legal separation is a necessary step prior to filing for a divorce. Other times, people think that it is easier to get a legal separation than it is a divorce. This article is intended to outline the difference between a legal separation and a divorce and to briefly describe the process necessary for both.

Obtaining a legal separation is much like obtaining a divorce. The legal process is practically the same. Whether an individual chooses to file for a legal separation or a divorce, they will need to go through the same three phased process outlined in my blog, “The Three Phases of Divorce”. In both a divorce as well as a legal separation, the Court will need to find that:

  1. At least one party has resided in Colorado for more than 91 days prior to filing;
  2. That the marriage is irretrievably broken; and
  3. That 91 days has passed since the time of filing before they can enter a final Decree of Dissolution of Marriage or a Legal Separation.

So, if the process and the time to get a Decree is the same, why do some people choose to file for a legal separation rather than a divorce?

There are some general reasons why people choose to file for legal separation rather than a divorce. One reason may be because of a parties’ religious beliefs. Some religions prohibit or look down upon divorce. Often, members of these religions will choose to get a legal separation rather than divorce. Another reason may be that the parties want to remain as considered legally married for the sake of their children. Further, couples may choose to file for legal separation rather than a divorce to allow one party the opportunity to remain on the other party’s health insurance. Often, but not always, an insurance will continue to carry a spouse on the other party’s insurance if they are “legally separated,” but not if they are divorced. This practice is changing somewhat, so you should always check before assuming that you will be able to remain on your spouse’s insurance if you obtain a Legal Separation.

Once a Decree issues on a legal separation, the parties are still considered “legally married” and could in essence request their separation be dismissed if they reconcile and want to return to being married. Whereas, once a Decree issues on a marital dissolution proceeding (divorce), the parties’ marriage is permanently dissolved.

The important thing to be aware of is if one party wishes to convert the Decree of Legal Separation to a Decree of Marital Dissolution (divorce), Colorado law allows one party to be able to request this after six months after the Court has entered the Decree of Legal Separation. So long as one party has given the other party proper notice, the Court shall change the legal separation to a dissolution of marriage upon request of one of the parties. They can do that, in part, because the process for both a legal separation and a divorce are practically the same. The impact of such a conversion could be drastic, for example, if one party has been relying on the insurance of the other only to find out that after six months the other party requests the legal separation be converted to a divorce and so they no longer would be covered by their former spouse’s policy.

Before filing, it is important to know the difference between a divorce and a legal separation. Although the process for both is the same, the implications and impact can be drastic.

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