What Is a Legal Separation?
Legal separation is an officially sanctioned judicial arrangement bearing similarity to divorce in the division of property, support obligations, etc. A legal separation, however, means that the marriage bond remains intact. This is like a no-fault divorce but does not bring about single status. After a couple has resided in Massachusetts for at least 12 months, they have the option of filing for a formal court action. This is called a separate support action, and it is the only way that the court has a right to divide assets in a marriage pursuant to M.G.L. chapter 208, section 34. A legal separation is necessary when the relationship has come to an end, but one or both people do not want a divorce . Reasons for a legal separation can include: It is important to note that a legal separation in no way conveys to the parties that the legal relationship will resume if their circumstances change. A legal separation is a non-judgmental agreement that nothing shall change for a period of time. If this inherent flexibility serves to bring about a reconciliation, the agreement can serve that purpose. If the separation remains in place indefinitely, there is also the possibility that a subsequent complaint for divorce could be filed and the court would have all the marital assets before it to make an equitable division. A divorce may not be initiated in Massachusetts when one of the parties is out of state. A separation is the only tool that can be used to accomplish a change in status in that instance.
The Advantages of Legal Separation
For some couples, legal separation is a more appealing option than divorce. There are several distinct benefits to choosing this route to dissolve the marriage. In certain circumstances, separating from your spouse can actually be financially advantageous. This often applies to couples with significant debts. By legally divorcing, the debts and assets are divided and each spouse is solely responsible for his or her portion of the marital debt. If you are concerned about the debt to asset ratio, separation may be a better option. Your spouse’s income might still affect the calculation for your payments, so legally separating may help you pay off alimony and child support while remaining in control of your financial future. If you’re concerned about losing health insurance, legal separation might be a smart choice. In most cases, when you divorce, you and your spouse are no longer eligible to be insured under the same plan through your employer. You may choose to go through Cobra, which might be a good idea if you and your spouse have significant health problems. Also, if you have children on your health plan, they will remain eligible to be covered under your employer’s healthcare benefits. While in most circumstances this could still be the case following divorce, the act of filing divorce proceedings ends a marriage and marriage is usually one of the qualifying factors for obtaining healthcare through an employer’s plan. The biggest distinction between legal separation and divorce is that separation allows for the possibility of reconciliation. If you file for divorce, it is final. The key to being granted a dissolution of marriage is showing that the marriage is irretrievably broken. Once you file the paperwork, you’re down the road to no return in the eyes of the law. Legal separation, on the other hand, does not legally sever the marriage, so there is the option of staying married and reconciling. There may be a time frame involved with the separation, of a few months up to a year, or whenever you and your attorney decide you are comfortable with proceeding with the divorce.
The Disadvantages of Legal Separation
While legal separation may be the better option for you and your family, there are some potential drawbacks to consider. For example, there may be more legal red tape involved with finalizing a divorce if you’re still legally separated. While this shouldn’t necessarily deter you from opting for legal separation with the intent to divorce later, it’s important to understand what these issues might be and plan ahead.
Legal complexity: The legalities involved with legal separation and divorce are different. For example, while the outcome for child custody may be the same as if you were divorced, a legal separation settlement agreement is like a divorce settlement agreement with the exception that the court cannot order a partition or sale of real property held in the name of a spouse. As the title of the property must remain solely in one name, the spouses may be unable to acquire new joint property; therefore, each spouse would need to support his or her new household. Parties who are legally separated are not authorized to file joint or head of the household tax returns.
Financial issues: Legal separation means legally married, which means you may still be stuck splitting your assets and debts with your spouse if it comes to that point. You may also be unable to begin certain financial processes, such as buying a house, without disclosing your "married" status, which may be a deterrent for lenders and sellers.
Emotional issues: Since legal separation is reversible, you might feel conflicted about moving into a new phase of your life. You may even regret the separation decision if reconciliation efforts are attempted and unsuccessful, or you might be worried about what your spouse or other people in your life will think, or how the decisions you make now will affect your children. Legal separation maintains the status quo in a way that a divorce never will once the process is complete and everything is final.
Legal separation may not be right for every situation, but for those where it is, it can be a viable compromise between living together and living apart. It is generally less painful emotionally than a divorce, but there are some drawbacks to consider as well.
What Is a Divorce?
A legal divorce process involves the dissolution of a valid marriage. Unlike legal separation, a divorce is permanent unless nullified by a court order. The proceedings typically involve decisions related to property and assets, as well as child custody and visitation rights.
Divorce typically involves one of three processes: an uncontested divorce, an arbitration, or a litigated divorce in court. An uncontested divorce is one in which both spouses are in agreement on the issues involved. If there are disputes that cannot be resolved, a litigated divorce becomes necessary. Before proceeding with a litigated divorce, attorneys will usually suggest an arbitration process to avoid the adversarial nature of a judicial divorce. Arbitration is a way of settling disputes more amicably by having a neutral third party serve as the decision-maker.
There are 13 grounds for divorce in the United States. The 9 most commonly accepted reasons for the dissolution of a marriage are:
All states recognize adultery as grounds for divorce. Some states do not require proof of any reason for the dissolution of a marriage that has been in existence for six months or longer. Such no-fault divorces are based on the irretrievable breakdown of a marriage. Most states also have an irreconcilable differences standard for couples seeking to file for divorce after living apart for at least six months or a year.
There are limitations to divorce grounds that vary from state to state. For example, certain states do not recognize bigamy as grounds for divorce because the marriage is invalid.
The Advantages of Divorce
When it comes to a legal separation, many individuals end up getting divorced anyway. However, for some, a legal separation may be preferable, at least temporarily. This is often because of religious doctrines that make divorce untenable, or the individual may be using it as a "trial" separation to determine whether they are ready to file for divorce, without worrying about the punishments usually associated with abandonment or desertion. At the same time, however, others may prefer the complete finality of a divorce rather than drag the process out.
For those who would rather move forward with a divorce, these are some of the benefits.
1. REMARRIAGE IS ALLOWED
When an individual receives a legal separation, they cannot legally remarry until the separation is converted to a divorce. While there may be some wiggle room in this area, such as if the other spouse publicly condones the relationship by acknowledging the new relationship, for example, the other spouse is still free to file for divorce. Divorce allows individuals to have a fresh start and move on after a relationship has ended , while a legal separation does not truly offer this to couples.
2. COMPLETE EMOTIONAL AND FINANCIAL INDEPENDENCE
A legal separation does not truly give individuals a fresh start. The relationship is still intact, and there are still assets and other issues that bind them together. This can be very difficult for individuals, especially if the separation was not their decision in the first place. Divorce allows for complete emotional and financial independence. There are no strings still tying you and your ex together, and you can move on from the relationship and build a new life, without the relationship holding you back.
3. DIVORCE HAS A CLEAR ENDPOINT
Nothing is worse than telling someone that your spouse is not actually dead with they commit to church or like a significant other. How do you explain that you are legally separated, perhaps moreso than you ever were married before? There are no defined grounds for separation, even when you go through mediation. With divorce, you can cut ties. While you will still have emotional and social ties to your spouse, you will have the ability to completely move on. There will be no need to explain to others why you are not married, when you are already divorced.
The Disadvantages of Divorce
The disadvantages of divorce are many, and that’s why your lawyer will strongly recommend exhausting every avenue available to you before you make the final decision to end it once and for all. For many reasons, in fact, divorce can be likened to a hurricane. Not only does it pose some immediate dangers you must prepare for, but the aftereffects can linger long after the storm passes, complicating your life in ways you never wanted or anticipated.
Alimony, child support, community property, custody and alimony arrangements, the division of debts, and then the legal fees involved make divorce quite an expensive undertaking. If you can’t effectively negotiate with your spouse to reach a sound settlement is it the best option for you? Even if you can, there is no guarantee that the settlement will be upheld, and either the costs or the delays may still prove substantial.
We can’t think of a more effective way to ensure your attorney sees plenty of billable hours than a month or two of painful back-and-forth as you battle over each aspect of your property division and other provisions of your divorce settlement. The more you argue, the more money it costs you.
Many people underestimate the emotional upheaval a divorce creates. In addition to the heart-wrenching decision to end your marriage, you face the prospect of having to drastically change your lifestyle, find new work, co-parent with your spouse, and manage the fallout from those closest to you, both groups of which may prove bitterly unsupportive of your decision to seek the divorce. This process can be time-consuming as well, as you attempt to move on with your life.
Taking legal action turns divorce into a public affair. Neighbors, friends, family members and even complete strangers can land themselves in the middle of a nasty divorce as they are called as witnesses during depositions or to testify. Others like to play the role of update delivering innocent bystanders or plain old rumor mongers.
During a divorce, it is not uncommon for friends or family to "choose sides." Children may struggle with their loyalties to parents. Spouses may experience very public disagreements over the disposition of property, assets and debt. Family members, friends, acquaintances, work colleagues, and basically everyone you know can become involved in your divorce through the "gossip mill." In a divorce, the reality of "public opinion" becomes very real…and it isn’t always positive.
Consider this: even a relatively uncomplicated divorce usually takes several months to reach the point where the court can grant a final dissolution. During those several months, you live under the same roof as your soon-to-be ex-spouse, often sharing the family unit and all it entails, from the bills and chores to the kids and the family dog. Depending on your circumstances, you face an even lengthier wait if you or your spouse wishes to take advantage of the statutory "cooling-off" period of three months after separating the household’s finances. In fact, in some cases, the wait is much longer than three months, and during that time, tempers can flare and tension can run high. Often, one spouse begins sabotaging negotiations to increase tensions and give them the upper hand in the eyes of the court, and, as a result, makes settlement even harder to reach.
Many couples choose to separate their finances and household quietly, simply living in the same house as though they were roommates, sharing the chores, but with no romantic or sexual bond. This offers many advantages:
Significant challenges exist in every divorce. As a result, some people may find it a more stable option to seek legal separation and its associated benefits instead.
Deciding What Is Best: Factors to Keep in Mind
When deciding between legal separation or divorce , it is critical to consider a number of important factors:
Financial status – how a division of assets and liabilities will occur through legal separation or divorce.
Children – whether custody and parenting time will be based on legal child support and child rearing responsibilities.
Religion – whether religious or personal beliefs play a role in the decision.
Professional advice – whether to seek the guidance of an experienced divorce or family law attorney to help make the right decision.