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The Pros and Cons of Getting a Legal Separation

If your marriage is going through a rough patch, you may be contemplating your legal options. Divorce is the most common way people handle ending a marriage, but it’s not the only option. If getting a divorce feels a little too final for you, there’s an alternative: legal separation. Getting a legal separation can be an excellent compromise for anyone who is on the fence about permanently leaving their spouse.

The Difference Between Separation and Divorce

A legal separation is a unique procedure that lives halfway between remaining married and getting a divorce. The most important part of a divorce is that it is permanent. Once two people are divorced from each other, then they are legally considered single again, without financial ties to the other person.

This isn’t the case with a legal separation. People who are legally separated are still married to each other. If both parties agree, a legal separation can be reversed by filing a motion to vacate with your spouse. Any court orders or support payments regarding the legal separation will then be considered null and void.

Legal separations and divorces do share several features, though. Both choices can involve:

In a legal separation, these orders can be dissolved if the couple reconciles. However, they can also be made permanent if they divorce.

There are some pros and cons to getting a legal separation instead of a divorce. Before filing for either, you should understand what makes a legal separation appealing in some situations.

Benefits of Legal Separation

The benefits of a legal separation largely stem from the fact that the couple is still married and can legally reverse the decision down the road. Here’s why some people appreciate this option:

Not Necessarily Permanent

In a relationship that’s struggling, divorce may seem like a step too far. You or your spouse may not want to permanently end the relationship without taking some time apart to gather your thoughts. A legal separation allows you both to live on your own as if you were divorced without having to end the marriage.

For some couples, this gives them the chance to reconcile differences without the stress of living together or sharing finances. For others, it acts as a gentle transition into divorce. Either way, the lack of permanency can be a comfort to anyone who still has feelings for their partner.

Peace of Mind

In the case of couples who do eventually divorce, a prior legal separation can provide some peace of mind. Taking some time to be legally separated can reassure both partners that a divorce is the right decision. Instead of jumping straight to a permanent ending, the legal separation lets both people transition into a divorce without any lingering “what ifs.”

Make Possible Future Divorce Simpler

Since legal separations involve many of the same decisions as a divorce – division of assets, support orders, and custody orders – they can set out a useful foundation if a couple decides to divorce. In fact, the decisions made for the legal separation can simply be transferred over to become the divorce judgment. That makes a future divorce as simple as resubmitting some paperwork in many cases.

Insurance Coverage

When partners are relatively amicable, a legal separation can be of significant value to the lower-earning spouse. Since the partners are still considered legally married, a legal separation allows them to share benefits such as health insurance without remaining together. As a result, a legal separation can be a useful concession to allow one partner to find health coverage before going through a full divorce.

Tax Benefits

In the US, there are significant tax benefits for filing your taxes jointly with a spouse. In some cases, getting a legal separation may result in both parties saving a considerable amount of money in taxes compared to getting a divorce. If this is a consideration, you should reach out to an attorney with a background in accounting to determine the best option for your situation.

Immediately Goes Into Effect

Finally, the most significant benefit for couples who are eager to separate is that a legal separation goes into effect immediately. As soon as your separation judgment is approved, the separation becomes active. Meanwhile, in California, there is a mandatory six-month waiting period before any divorce is finalized. When a couple has serious disagreements, time may be of the essence, and a legal separation may be the right first step.

Drawbacks of Legal Separation

Of course, legal separations are not perfect. They are a good option in certain specific circumstances, but they have two significant drawbacks. These drawbacks stem from the fact that you are still considered legally married to the other person, and they’re why many people simply opt for a divorce.

May Not Get Remarried

As long as you are legally separated, you are still considered legally married to the other person. That means that you cannot get remarried to someone new. If you find a new partner during a legal separation, you will need to get a complete divorce before getting married again.

Financial Ties Remain

California is a community property state. Spouses share equal ownership of everything in the relationship – both assets and debts. When partners are legally separated, they still carry responsibility for their partner’s debts, even those incurred after the separation. Many separating couples already have disagreements over money, so remaining financially entangled is unappealing.

Separations Can Become Permanent: Work with an Attorney

While a legal separation may seem more manageable than a full divorce, it’s still an important decision. These separations can become permanent, and the terms of the separation may become the terms of the divorce. That’s why you should always consult with an experienced divorce and separation attorney before taking legal action about your marriage. If you’re considering a legal separation, contact us today to discuss your options. We can help you decide whether a legal separation or a divorce is the right course of action for