What is a Legal Separation vs. a Divorce?

In Colorado, legal separation and divorce are distinct legal processes but follow nearly identical procedures. Both divide finances, property, and determine custody. The main difference is that, after a legal separation, spouses remain legally married. This prevents them from remarrying but can offer financial and religious advantages by not fully dissolving the marriage.

Below is a closer look at the differences between legal separation and divorce and why someone might choose one over the other.

Key Differences Between Legal Separation and Divorce

1. Marital Status:
   • In a divorce, the marriage is fully dissolved, allowing both individuals to remarry.
   • In a legal separation, you remain legally married but lead separate lives financially and personally.
2. Court Process:
   • Both legal separation and divorce require a court case in which similar decisions are made regarding custody, maintenance, child support, and property division.
3. Financial and Legal Implications:
   • Debt Protection: Legal separation can shield one spouse from liability for new debts the other may incur after separation, preserving each person’s financial stability.
   • Social Security Benefits: Remaining legally married may allow a spouse to eventually claim Social Security benefits based on the other spouse’s work record, particularly if the marriage lasts 10 years or longer.
   • Estate and Inheritance Rights: In a legal separation, spouses may retain inheritance rights, meaning they can inherit from each other unless they specify otherwise in a will.
   • Spousal Support and Alimony: A legal separation may establish terms for spousal support similar to divorce, providing financial support without ending the marriage.
   • Trust Instruments: A legal separation means that the Parties are still technically married, which could affect (or not affect) their rights under a trust. For example, many trusts define the beneficiary as a person’s “spouse.”
   • Tax Filing Status: Legally separated couples may retain the option to file taxes as “married,” which could result in tax benefits depending on income levels and tax brackets.

Reasons to Choose Legal Separation Over Divorce

Some couples opt for legal separation instead of divorce for the following reasons:

• • Religious Beliefs: Some individuals hold religious or moral convictions against divorce, preferring separation as a compromise.
  • Financial Concerns: Separation can protect joint finances if one spouse has financial issues or risky behaviors, like overspending or substance abuse.
  • Health Insurance Benefits: Remaining married may allow one spouse to stay on the other’s employer-sponsored health insurance plan.
  • Military and Retirement Benefits: Legal separation may enable one spouse to continue benefiting from the other’s retirement or military benefits.
  • Hesitation to Divorce: Some couples simply aren’t ready to divorce but want to live separately, often using separation as a trial period before making a final decision.

Converting a Legal Separation into a Divorce

After a legal separation is finalized, either spouse may request to convert it into a divorce. This conversion can be straightforward if requested during the separation proceedings but may be more complex once the case is finalized. This flexibility is valuable for those uncertain about divorce but wanting the option.

Filing for Legal Separation in Colorado

The process to file for legal separation is nearly identical to filing for divorce:

1. Filing a Petition: File a petition with a Colorado district court, the same as with a divorce case.
2. Using Similar Forms: The legal paperwork and forms are the same, whether filing for divorce or separation.
3. Consulting an Attorney: Many individuals who start with a separation often switch to divorce after consulting with an attorney, as the processes are very similar.

Cost of Legal Separation

Legal separation and divorce costs are generally comparable, given the similar legal processes involved. Both require filing legal documents, attending court, and often negotiating or litigating issues around property division, spousal maintenance, child custody, and support. Attorney fees make up a significant portion of these expenses, as lawyers usually charge similar rates for either case type. The legal expertise and procedural steps required are almost identical.

For cases with complex finances or custody disputes, additional expenses for mediators and financial experts can add up. Mediation fees increase, especially if multiple sessions are needed to reach an agreement. Expert fees for appraisers, financial advisors, or child custody evaluators also contribute to the overall cost. Therefore, choosing between legal separation and divorce should depend on personal, religious, or financial considerations, not cost savings, as both processes often have a similar financial impact.