What should I consider when choosing between a legal separation and dissolution of marriage?

Big decision here. Or at least it feels like one, right? Getting a divorce feels so final – and it is! Sometimes, when folks are hesitant to pursue that finality, but are ready for a split, they consider legal separation as a “divorce-light” option. Another reason folks consider legal separation is when there are concerns about a spouse losing access to medical insurance. 

Whatever your reasons may be, legal separation is certainly an option, but it should be pursued with an understanding of the process and what you get for your troubles. What process? Surely it must be way easier and way faster to get a legal separation, right!? Wrong. In Colorado, legal separation looks almost identical to a Dissolution of Marriage (divorce) even though you are still technically married at the conclusion. Legal Separation requires all of the same steps such as an initial status conference, financial disclosures, mediation and, in order to finalize the process, a full resolution regarding the division of marital assets and debts, a determination about maintenance (aka spousal support or “alimony”), parenting responsibilities (“custody”) and child support, etc. So, to the extent a legal separation is being sought as a divorce-light option, think again. 

So, what are the pros of legal separation then? First and foremost is that the divorce is not final and reconciliation is a possibility. There may be a religious consideration that makes legal separation the best path forward. Next, your stuff is divided. Permanently. You won’t have to revisit that process of splitting the assets and debts. Also, everything you acquire after the legal separation is your own (pro tip - don’t mess this up by buying new stuff together!). Also, you are still married for tax filing purposes and may benefit from a joint filing. Maintaining a spouse for the purposes of social security benefits, and military benefits may be a benefit. Your spouse may be entitled to remain on an insurance plan. 

Note that I said may remain on insurance. This is a common misconception that spouses can always remain covered after a legal separation. If the legal separation route is intended to preserve coverage, ensure the policy allows for continued coverage of a spouse after legal separation. 

A few more words of caution: While re-marriage may be the last thing on your mind right now, if you get a legal separation and then move on with your life (as tends to happen), you can’t remarry! You would need to convert your legal separation to an actual dissolution of marriage before you could remarry. The process is not difficult though and can be accomplished once 6 months have passed since your legal separation entered.

Another potential pitfall, believe it or not, is forgetting you aren't actually divorced. As I alluded to before, the process for legal separation includes nearly all of the steps of a dissolution process – it will feel final. Plus, time passes and life moves on, but if you do not actually convert to a dissolution, your former spouse is still your legal spouse for the purposes of being an heir to your estate when you die. That may not be what you want or have intended as the years pass by.

In conclusion, legal separation is often not the quick and dirty tool folks think it is going to be. It is not faster, it is not cheaper, and it does not always guarantee that a spouse will stay covered by insurance. Even still, it can be the right tool for couples who wish to take a thoughtful and stepped-approach to separating their lives.