Welcome to FreeDivorce.com.
Christina: This is Christina.
Ed: This is Ed. We are going to discuss the differences between a divorce and a legal separation.
Christina: Some people file for a divorce and some file for a legal separation. Should people file for a divorce or a legal separation and what is the difference between the two?
Ed: In almost all cases, you want to file for divorce and not a legal separation. A divorce and a legal separation are nearly identical. Whether it is a divorce or a legal separation, the court divides your property and debts, makes child custody orders, and issues child and spousal support orders. Whether it’s a divorce or a legal separation, you fill out the same court forms. In fact, a petition for a divorce and a petition for a legal separation are the exact same court form. You just check different boxes. You attend the same hearings and go through the same court process. The main difference between the two proceedings is that a Judgment of Divorce terminates your marital status while a Judgment of Legal Separation does not.
Christina: Why would anyone file for a legal separation if it is just like a divorce, but the court does not terminate your marital status?
Ed: There are a number of reasons why people file for a legal separation. One of the most common reasons is the couple can’t meet the six-month residency requirement. They will file the petition as a legal separation to get the court process rolling, and then amend the petition to divorce after they have satisfied the six-month residency requirement.
A second reason why some people file for legal separation has to do with health insurance. I’m married. I have my health insurance through my wife’s employment. I’m eligible for health insurance because I’m my wife’s spouse. If we get divorced, I’m no longer her spouse and I lose my health insurance coverage as soon as the court terminates our marital status with a divorce judgment. However, if we get a judgment of legal separation, she is still my spouse and some health insurance plans will still permit me to continue to be covered under her health insurance plan. Back in the early 1980s, there were quite a few health insurance plans that would not terminate health insurance coverage for a spouse if you had only a judgment of legal separation. However, as time has gone by, insurance companies have modified their plan provisions. Now, most employer-sponsored health insurance plans will terminate a spouse’s coverage whether it’s a legal separation or a divorce.
If you want to continue your health insurance coverage that you have through your spouse’s employer, you can do so even with a divorce, if you structure your divorce judgment so your marital status isn’t terminated on a fixed date, but is to be terminated upon a future stipulation. We discuss this strategy in a later program.
A third common reason why some people file for a legal separation is for religious reasons. Many religions do not accept the concept of divorce. Some people will come into the office and say that they understand that in the eyes of God, they are married forever to their spouse, but that does not change the fact that they can’t tolerate continuing to live with their spouse. They need to live apart and so they need court orders dividing their property, setting custody orders, and issuing support orders. They can get all of that with a judgment of legal separation.
Christina: If you get a legal separation instead of a divorce, does that present any problems because you are still married to your spouse?
Ed: There can be any number of problems. If you obtain a judgment of legal separation rather than a divorce, you are still married to your spouse. This means you cannot remarry. A lot of the people that ask us to get them a judgment of legal separation, swear they will never remarry. Almost all of those people come back a few years later and tell us they found someone new and want to remarry. If you obtain a judgment of legal separation and later decide you want to marry someone else, you will have to file a whole new court proceeding in order to dissolve your marital status. You will have to file a divorce petition and pay the court clerk a filing fee. The only issue in the subsequent divorce action will be the termination of your marital status. You won’t have to re-litigate custody, support, or property issues.
Christina: If you want more information about the differences between a divorce and a legal separation, go to the home page. Look at the list of “Featured Topics” that are set forth on the left side of the home page, hover over “Preliminary Considerations” and then click on the subtopic entitled, “Legal Separation”.