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Legal Separation

A separation agreement must be agreed to by both parties and will include provisions regarding such issues as maintenance (alimony), child custody and support, as well as the division of property.  Unless otherwise agreed to by the parties, all of the terms of the agreement (other than items dealing specifically with any children) will eventually become part of the divorce decree, if there is one.  Since courts are tasked with looking out for the best interests of children in any legal proceeding, custody, support, and visitation are always modifiable if circumstances change.  Of course, if a couple decides to reconcile during a legal separation, then the agreement can be voided if both parties agree to do so.  There are typically two reasons that spouses might consider a legal separation instead of going straight to a divorce.

• Personal:  A husband and wife may honestly not know yet if they want a divorce.  A legal separation would provide a “trial run” to determine if divorce is the right choice.  A separation agreement allows the parties to see what it’s like to live apart and whether or not any children of the marriage are affected negatively.  The spouses likewise can find out if they can live with the reality of only seeing their children part of the time.  All of these issues (and others) can be explored before taking the final step of filing for divorce.

• Financial: It is not uncommon for spouses to avoid divorce for a variety of financial reasons, even though they no longer wish to live as husband and wife.  A common reason is health insurance.  If only one spouse has employer-provided insurance then the non-insured spouse would likely lose coverage upon the finalization of a divorce.  A legal separation would allow coverage to continue.  A couple may also determine that there are significant tax advantages to filing their federal return jointly.  This can only be accomplished if the couple is not divorced.  In military families, full benefits don’t fully vest for the non-military spouse until they have been married for ten years. It might therefore make sense to postpone the divorce with a separation agreement until the ten years have passed.  These are just some of the practical reasons to legally separate rather than divorce.