What is Legal Separation?

Clients often ask if they should consider legal separation instead of divorce.  Legal separation has some significant draw backs.  Primarily, you will feel like you’ve gone through a divorce process, but will still be legally married when the court process is concluded.  The reason that legal separations are equally expensive and emotionally exhausting as a divorce is because the grounds for legal separation are virtually the same: you have to prove why you want a legal separation at trial based on wrongdoing of the other party, or the parties must agree and enter into a separation based on irreconcilable differences. The legal effect is that you are able to divide all your property, and obtain a parenting plan for children under 18, but you are still married in the eyes of the law. This means that the spouses may still inherit from one another, unless Wills are revoked and revised. After two years, there is an additional ground available for divorce whereby legally separated persons can simply obtain a divorce certificate. However, when you consider the expense of retaining your attorney a second time to file a new petition with new filing fees, getting the other spouse served, and going through the court process to obtain that final divorce, a legal separation has few advantages. If you still feel that a legal separation is right for you, perhaps the questions to ask yourself are:

  • Do I think the marriage is worth saving? If so, would marital counseling be more effective than court litigation which is designed to divide our households and property like we are going through a divorce?
  • Why do I want to stay married? Are there legitimate legal reasons why you feel this may be appropriate, and if so, are you being honest with yourself and your spouse about the reasons you may wish to stay married solely on paper?
  • Am I concerned about who would inherit my property? You will need to have a detailed discussion with your attorney if this is a serious consideration.

Cobb & Waites PLLC practice in the areas of Family Law, Litigation, Estate Planning, Business Law, and Probate. Call our office for a free consultation to discuss your personal or professional matters at no charge. We want to craft a personalized solution to problems which we know are deeply personal to you.

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