How Is A Legal Separation Different From A Divorce?

Posted in Divorce,Separation on April 24, 2017

If you and your spouse no longer want to be together, you have two main options: legal separation or divorce. Understanding the difference between these two – and the litigation and/or judgments they may entail – can significantly help you and your spouse navigate tricky legal processes. Separations and divorces can be complex, but the more you know about each, the better your chances of coming to an amicable agreement with your spouse.

Legal Separation in Colorado

A legal separation is when a couple divides assets and lives separately, but they are technically still married in the eyes of the law. Legal separation is not the same as if you and your spouse decide on your own to split assets and live apart. There is a legal process you must undergo to achieve this status. Here’s how to go about a legal separation in Colorado:

  1. You and your spouse come to a separation agreement. This agreement should include decisions about child custody and support, property division, and spousal support – agreed upon by both parties. If you’re considering a legal separation with children, visit the Colorado Judicial website for help calculating child support.
  2. If your spouse does not agree to your legal separation terms, you can file on your own. To file your paperwork with the Colorado civil courts, you must have lived in Colorado for at least 90 days before filing. File in the county you live within.
  3. File a petition using the correct paperwork, as specified by the Colorado court system. You (and your spouse if he/she agrees) must sign the petition in front of a notary, and take the original documents to your county clerk’s office. There may be a fee to file your petition with the courts.
  4. The courts will find your marriage is either irretrievably broken or that both parties have mutually agreed to live separate from one another, thus ruling on your legal separation.

In a legal separation, you and your spouse have definitive rights and obligations by law. Couples may opt for legal separation instead of divorce for religious reasons, cultural beliefs, personal reasons, financial decisions, to retain spousal health insurance benefits, or for reasons relating to children. It is possible to rescind a legal separation and return to your previous living arrangement or turn a legal separation into an official divorce.

Colorado Divorce or Termination of Marriage

If you and your spouse opt for a divorce, the courts will effectively terminate your marriage at the end of your court proceedings. Instead of simply living apart and separating your assets, you and your spouse will be legally unmarried. Getting a divorce has one main legal consequence that legal separation does not: the freedom to remarry. If you are legally separated, you technically cannot remarry. A divorce, on the other hand, formally ends your marriage, letting you move forward as a single person.

After a divorce, you do not have to mark you are married on official forms, as you would were you to file for legal separation. You lose the right to inherit from one another, as well as any spousal insurance, social security, and pension benefits. If you and your ex-spouse have another child together, the child would not legally be the child of your spouse unless you formally establish paternity. A divorce allows you to break off all connections with your spouse if desired, versus a legal separation in which you’re technically still connected. These are all factors to take into consideration when deciding between legal separation and divorce.

There is a different process you and your spouse must undergo to obtain a divorce decree compared to a legal separation. When in doubt about your decision or how to proceed, speak to a divorce attorney in Colorado.