Is Legal Separation Different from Divorce?

If two spouses decide they no longer wish to be together, divorce may likely be the first choice that comes to mind. In Colorado, however, legal separation may also be an alternative. Not all states recognize legal separation, but Colorado has laws specifically addressing the difference between divorce and legal separation. By being legally separated, a couple gains the right to live apart while still remaining married.

There are numerous advantages to a legal separation over a divorce, such as spouses being able to disentangle themselves from joint financial obligations and resolve arrangements on child custody, child support, spousal maintenance, and division of property.

Technically, many couples choose to seek a legal separation instead of a divorce for purposes of insurance and select health care plans. Legal separation is particularly beneficial for military families, as the Uniformed Services Spouse Protection Act entails couples to remain married for a minimum of 10 years before the non-military spouse can avail of benefits. Like military benefits, the Social Security death benefit goes into effect only after a couple has been married for at least 10 years.

Legal separation is also an option for couples that wish to establish economic independence but have strong religious or moral beliefs that do not agree with divorce. The process of legal separation also appears to be a less stressful option, and is ideal for couples that need to spend time apart but are not yet certain if they want to get divorced.

Since both parties are still married by law, however, a wife cannot legally reclaim her maiden name, and neither spouse can remarry without first obtaining a dissolution. Legally separated couples also retain inheritance rights in the absence of a written agreement providing otherwise.

Contrary to what many people think, obtaining a legal separation in Colorado is not necessarily easier than getting a divorce. A couple cannot simply live separately from their spouse for a certain period of time to achieve the status of being “legally separated.”

The process is identical in terms of procedure, as it requires one or both spouses to file a Petition for Legal Separation in court. This petition must then be served on the other spouse. Another option is for the parties to file the petition jointly. The primary difference is that the parties end up with a decree of legal separation as opposed to a decree of dissolution.

Once a decree of legal separation is issued, either spouse can ask the Colorado family law court to change it to a decree of dissolution after six months. The decree of dissolution often has the same terms as the decree of legal separation. No hearing is needed, and the other party cannot object to the conversion from legal separation to divorce.