When you and your spouse begin to drift apart, you might start to consider steps you need to take to either reconcile or end the relationship. In particular, you may wonder what is most appropriate for your situation: divorce or legal separation?
A divorce cuts all legal ties between spouses that arise out of the marriage. It has the effect of ending the accumulation of “marital assets” (a classification given to property acquired during the marriage, of which equitable division between the spouses can be made) and causing an automatic revocation of certain beneficiary designations and estate planning documents that benefit your spouse, among other things.
In contrast, a legal separation merely suspends the effect of the marriage with regard to cohabitation. In other words, the parties’ obligation to live together as husband and wife is suspended, but the marriage itself remains legally intact. The legal separation process is nearly identical to that for obtaining a divorce. Even though a judgment of legal separation may include such topics as property division, spousal and child support, and custody of children, the parties will continue to accumulate marital assets and will not have the same breadth of protection from each other’s poor financial decisions after separation. This is because even with a judgment of legal separation, the law allows either party to seek a divorce down the road, and at that time the judge has the authority to rearrange awards of property and change the responsibility among the parties for who pays what debts. Whether a judge will do so depends on a number of factors, including how the legal separation judgment was written in the first place and what, if any, unexpected events have occurred since then.
When is Legal Separation Appropriate?
Many people attempt to use separation as a way to keep open the possibility of reconciling with their spouse. However, it rarely accomplishes this goal. If you are not sure about ending your relationship, the best thing you can do for you and your spouse is to pursue professional couples counseling. This will help you decide whether you truly want to walk away from the relationship. However, there are a few good reasons to opt for a legal separation instead of a divorce.
One of these situations is when spouses want a divorce in everything but name due to their religious beliefs. If these spouses understand the legal differences between a legal separation and a divorce, legal separation may be the answer to accomplish their most important goals.
Failure to Meet Statutory Residency Requirements
To file for divorce, a party must have lived in Oregon for at least 6 months. However, this is not the case in filing for legal separation. Therefore, another limited circumstance in which legal separation is appropriate is when a spouse needs a support or custody order in a relatively short amount of time but hasn’t lived in Oregon long enough to meet the residency requirements for a divorce. In this instance, the spouse can file for and obtain legal separation, including custody or support orders. They can then convert the case into a divorce fairly inexpensively when the residency requirement has been met (within two years of entry of the legal separation judgment).
A Note About Health Insurance and Income Tax
There are also some circumstances in which a legal separation may seem beneficial, but this may not be the case. One of these involves health insurance. Sometimes, a spouse chooses to seek a legal separation in the hope that he or she will be able to remain covered by the other spouse’s medical insurance. In fact, many medical, automobile, and life insurance policies treat legal separation the same as divorce; be sure to check policy rules before assuming you will still be protected. The same may be true of income tax laws. It is advisable to consult with your CPA or tax preparer to learn the consequences of a legal separation as compared to a divorce.
Seek the Advice of Legal Counsel
The legal professionals at Holtey Law, LLC have years of experience navigating the murky waters of both divorce and legal separation. They can give you the advice and emotional support you need to decide for yourself what course of action is best for your situation. Contact them today!