Should I Get A Divorce Or Legal Separation?

Cindy Best

A common question spouses have is whether they should get a legal separation instead of a divorce. The answer depends on what you are trying to achieve. If you want some financial protection or you want to continue your health insurance, a legal separation will likely accomplish both. If you want to get remarried, you need to get divorced. It is also common for a spouse to file for a legal separation to stop the debts incurred by the other spouse from becoming a community debt. When a petition for a legal separation is filed and served, each party is then responsible for any debt incurred after that service date.

A legal separation is almost identical to a divorce, except at the end, you are separated and not divorced. The procedures are identical in terms of filing, costs, and the final agreements regarding finances. Financial agreements in a legal separation will become the same financial agreements in a divorce. In other words, you cannot make a decision regarding finances in a legal separation and then change your mind about the same issues in a divorce, unless both parties agree. The financial agreements in a legal separation (or court decisions) cannot be changed in a subsequent divorce action.

Children and Legal Separation

If, regarding children, you want to have different decisions in a divorce than were made in a legal separation, you can do so. Children are an exception to the general rule that decisions in a legal separation are final in a divorce. You and your spouse can make certain decisions and agreements for a legal separation concerning children, and you are then free to renegotiate or litigate those decisions in a subsequent divorce. Please recognize that there is some duplication of documents, times and litigation expense if a legal separation turns into subsequent divorce.

If the person who filed for a legal separation decides that he or she prefers a divorce, then that spouse will have to re-file the paperwork and pay a new filing fee for the dissolution. On the other hand, if one spouse files for a legal separation and the other party wants a divorce, that responsive party can convert the legal separation into a divorce without the consent of the party who filed first, and without paying additional filing fees.

Do not be lulled into thinking you are just getting separated, when your initiating separation may, in fact, cause your partner to respond with a divorce. You may find yourself trying to stop a runaway train if you file for a legal separation, falsely believing that a divorce cannot result from your initial filing. Use caution in filing any papers, and never use it as an attention-getting device, because it may go further than you wanted. Remember, if either party wants a divorce, there is nothing you can legally do to stop it.

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