This guide is designed to help explain the key distinctions between obtaining a legal separation from your spouse and getting divorced.
There are several key differences between obtaining a legal separation and a divorce from your spouse. However, procedurally speaking, a divorce and legal separation are nearly identical. Both actions are controlled by Title 14 of the Colorado Revised Statutes. During an action for legal separation, marital assets and debts are allocated between each spouse, as are parental responsibilities and spousal maintenance and child support are also determined. There must be full financial disclosure between both spouses pursuant to Colorado Rule of Civil Procedure 16.2 in both divorces and actions for legal separation. One process is not necessarily any more speedy or simplified than the other. To note, "[i]f a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects." C.R.S. Section 14-10-106(2).
Differences between a Legal Separation & Divorce.
The key distinction between a legal separation and a divorce is the fact that neither spouse can marry another person after a decree of legal separation enters like they could if they were divorced. Thus, often times people seek a legal separation rather than a divorce for religious or personal reasons. In example, some Catholics prefer a legal separation over divorce to help ensure they are not excommunicated from their parish. In the alternative, if you are contemplating a divorce but are unsure whether there can be a future reconciliation, a legal separation may be an appropriate course of action to take.
Are there benefits to a legal separation?
Yes, there are several potential benefits to obtaining a legal separation rather than a divorce. For instance, you can only file jointly on your taxes if you are still married, and a legal separation does not change your marital status for tax purposes. You are still married to the other person after obtaining a legal separation. IRS publication 504 states that you can still file tax returns jointly regardless of a legal separation, but you cannot file jointly once you are divorced. Consequently, if your income amount gains greater benefit from the married filing jointly status, a legal separation is potentially much more beneficial.
Another potential advantage to remaining legally separated instead of divorced is the health insurance benefit. In the private sector, employee insurance plans often times will only insure "married" couples. To the contrary, as soon as a divorce is finalized, the non-employed spouse is dropped from the insurance coverage. However, this differs by carrier and you would need to review your specific insurance policy to determine whether a legal separation would prohibit continued coverage for your spouse.
Finally, a legal separation satisfies all the divorce prerequisites. If you opt to obtain a legal separation and later desire to convert that legal separation to a decree for dissolution of marriage (a/k/a divorce), the process is simplified and permissible by statute after six-months have elapsed. See, C.R.S. Section 14-10-120(2) (stating: "No earlier than one hundred eighty-two days after entry of a decree of legal separation, on motion of either party and proof that a notice has been mailed to the other party at his or her last-known address, the court shall convert the decree of legal separation to a decree of dissolution of marriage, and a copy thereof shall be mailed to both parties").
Additional resources provided by the author
This is a complicated area of family law and you are encouraged to speak with an attorney that is familiar with these issues so you may discuss the specifics of your circumstances, obtain legal advice, and make an informed decision as to how best to proceed.
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