Wednesday, April 7, 2010

The Differences Between Divorce and Legal Separation?

In most ways, a legal separation is the same as a divorce and the procedure in the court is virtually identical. Both include final custody, visitation, child support and spousal support orders, and all the family assets and debts are permanently divided. In both types of cases, it is possible to get temporary orders about support and children’s issues early in the case, if needed.

Some of the differences include:

Divorcing couples must wait a minimum of six months after filing the Petition and Response (or filing a Petition and serving it on the other party).There is no waiting period to finalize a legal separation.

The parties cannot restore a former name/maiden name in a legal separation, but it can be done in conjunction with a divorce case. Names can still be changed through the regular civil process at any time.

Both parties must agree to file a legal separation. Either party can file for a divorce without the agreement of the other, including converting a legal separation case into a divorce case before the case is finalized, or filing for a divorce sometime after the legal separation case is over.
A divorced spouse loses “surviving spouse” benefits under the probate codes; a legally separated spouse retains those rights.

The major difference is that if the parties have a legal separation, they are still married to each other after the court case is over. They can remain legally separated indefinitely, or until one or both choose to divorce.

Why Do Couples Choose Legal Separation?:
Some couples choose legal separation because of religious beliefs, or moral reasons, or they are just not ready emotionally to divorce. A few choose legal separation so they can still file joint tax returns as “married” people. Most often, couples choose legal separation so one person can keep health insurance coverage from the other spouse’s employment (the availability of which is determined by the insurance carrier, not state law). Employer health insurance may continue after a divorce under COBRA, but the coverage is limited and is often very expensive.