FAQ #14

14. What if I just got a legal separation, how would that differ from a divorce?

You can file for a legal separation, sometimes called a limited divorce, which can be enhanced later, into a full divorce. Spouses may do this when they want the protective aspects of divorce but don’t yet qualify. For example, they might not have been living apart long enough to file for an uncontested divorce.

An important step to take during the separation period is to negotiate a marital separation agreement, which sets out the couple’s legal decisions regarding property divisions, support, and personal ground rules. If you don’t have a separation agreement or a pre-marital (pre-nuptial or, more correctly, ante-nuptial) agreement in place, then the local court will decide the important issues for you, always a high-risk venture. In an uncontested divorce, the separation agreement is signed before the divorce papers are filed with the court, sometimes quite a long time earlier. So, it is very possible to enter into a separation agreement without deciding when or even whether to proceed to divorce. That way, you know what you can do safely and your entitlements. In addition, the other spouse can file for divorce unilaterally, without your permission, as soon as the qualifying factors are present, so it is crucial, in that event, that the decisions in the separation agreement still apply.

If the separation agreement is comprehensive, then the main legal differences between separated couples and unmarried (divorced) couples are that they cannot remarry or file individual tax returns. And, married but separated couples have various other tax disadvantages.