Legal Separations: When, Why, and How

written by Jim Duzak |

Legal separations are the subject of a lot of confusion. Some people think that they’re a precondition to getting a divorce (they aren’t). Some people think that they automatically result in a divorce after a certain period of time (they don’t); or that they expire if they’re not eventually “converted” to divorce cases (they don’t). Some people think that they are extremely limited in what issues they can address (in most jurisdictions, that’s not true). I think of a legal separation as a divorce that’s not really a divorce. What I mean is that, like a divorce , a legal separation is a formal legal proceeding in which a judge can issue orders. Child support and spousal support can be ordered in a legal separation, real estate and bank accounts can be divided, debts can be apportioned, and child custody and “parenting time” (visitation) can be determined.

But, unlike a divorce , the husband and wife remain married for all legal purposes, most notably inheritance rights and Social Security survivor benefits, IRS filing status, and, of course, the inability to remarry until or unless there is a “real” divorce.

Why would a couple get a legal separation and not a divorce ? One reason might be that they’re not convinced their marriage is over, but they need to live apart for a while and to have the security of enforceable orders while they work on their marital issues. In this sense, a legal separation is an alternative not only to a divorce but to an ill-defined “trial separation”, in which any agreements the parties make may not be legally enforceable.

Another reason might be religion. There are religions that forbid—or at least strongly discourage— divorce , but I don’t know of any that prohibit legal separations . Yet another reason might be finances. Remaining legally married usually means that you can avoid being automatically dropped from your spouse’s health insurance plan. (Yes, there is COBRA coverage available after divorce , but it’s typically very expensive and doesn’t last beyond 36 months).

And, even in the worst of marriages, some people find it hard to admit that their marriage is over. Being legally separated can offer the hope (or the illusion) that the separation will just be a temporary one. And, indeed, that can happen. But if a year or more goes by and the couple is not close to reconciling, divorce may start looking like a more realistic and permanent solution. The only downside in converting the case from a separation to a divorce is that there could be additional legal fees and court costs. However, unless major financial or child-related changes have occurred during the legal separation period, the extra expenses shouldn’t be prohibitive. (And, please, don’t try to save a few bucks by representing yourself in court. With any luck, this will be your only divorce . Not only are there huge issues at stake, but you might wind up even payi...

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