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Legal Separation vs. Divorce

Generally, people want to know why they should consider getting a legal separation vs. a divorce. In my experience, there are five reasons that have come up more frequently as to why a couple may choose to legally separate as an alternative to getting a divorce.

If you’re getting ready to legally terminate your relationship with your spouse, you may want to determine if these reasons, or any others, might justify pursuing a legal separation instead of a divorce:

Reason #1: Religion

Some religions, such as the Catholic Church, frown heavily on divorce. Now, they don’t enthusiastically endorse legal separation, but it tends to be looked upon more favorably.

If you and your spouse are religious people and it’s important to you to remain in good standing with your religious institution, legal separation may be a good alternative to getting divorced. To some devout people, it can accomplish many of the issues that would be resolved by a divorce without going contrary to his/her religious beliefs.

Reason #2: For the Sake of the Children

Some people would rather tell their children that “Mommy and Daddy are still married, they just don’t live together,”. If this is important to you, a legal separation rather than a divorce may be appropriate. In these cases, most often the parents will live completely separate lives as though they were divorced, but they seem to take comfort in knowing that they’re not legally divorced. These people also seem to believe that this prevents their children from coming from a “broken home”.

Reason #3: Health Insurance

This used to be a biggie, but the insurance companies reduced the importance of this factor. Obamacare also reduced the impact when it provided coverage for pre-existing conditions. With the status of health care in this country in flux, it is impossible to predict the impact in the future.

It has always been the situation that, if you got divorced, you were no longer a family unit and family coverage would not be available for everyone. However, it used to be that if you were legally separated from your spouse you were not divorced and, therefore, you got to keep family health coverage. I’ve had cases where a spouse had serious health concerns, like cancer, heart issues, etc., and by obtaining a legal separation, family health coverage would continue to provide benefits.

Several years ago, the insurance companies figured out that if they refused to provide family coverage after a legal separation, they would make more money. As a result, many of the large carriers developed a policy that family coverage was not available if the parties obtained a legal separation.

If family coverage is important to you, I recommend that you contact your provider and determine its position

The importance of continued coverage under a prior policy may be affected by the present state of politics. Obamacare had a mandate that pre-existing conditions were covered. The new administration has taken varying positions on this issue, and I cannot predict the end result. Depending on the new laws, this may or may not become a bigger issue.

Reasons #4 & 5: Emotional Upset

If you believe your spouse is emotionally unstable and adamantly does not want a divorce, your pursuing a legal separation can come across as much less threatening. To avoid beating around the bush, all parts of the country have experienced a situation where one spouse files for divorce and/or separates. The other spouse does not take the news well, goes to his/her spouse’s place of employment and kills him or her stating, “If I can’t have you, no one can have you,” and then kills himself/herself. Since a legal separation does not actually terminate the marriage, the other spouse is less likely to drastically react to the filing. Actually, I have seen adverse parties act extremely reasonably in response to a legal separation, hoping to “win” back his/her spouse.

If you’re not concerned about your spouse drastically reacting to the filing, I have had cases where the non-filing party who doesn’t want a divorce again sees an opportunity to salvage the marriage and will negotiate in a reasonable manner to convince his/her spouse that he/she is a reasonable person. If that is a possibility, it could sway you into filing for a legal separation.

It’s also important to remember that a legal separation can be converted to a formal divorce pretty easily before the proceedings are concluded. Furthermore, a legal separation can be converted into a divorce six (6) months after the formal decree of legal separation is entered.

However, as I always say, each case is different and it is best to discuss your options with an attorney before moving forward.

If you’re considering a legal separation or divorce, call us at 303-449-1873 to set up a free consultation.