Legal Separation: Pros and Cons

Legal separation is NOT a “trial separation.” Rather, legal separation may be an alternative to divorce if a married couple would like to deal with the issues involved in their marriage, but would prefer to remain married. These issues may include things like child custody, child support, spousal support (alimony), property division, debt division or legal fees.

Some of the more common reasons for selecting legal separation as opposed to divorce include religious restrictions on divorce or to overcome California’s six month residency requirement for divorce. In addition, legal separation often allows someone to maintain health insurance benefits obtained through a spouse.

There are several significant differences between a legal separation and a divorce. For instance, both spouses must agree to a legal separation. If not, a legal separation becomes a divorce. Second, there is no “waiting period” for a legal separation. In the state of California, a divorce requires a mandatory six month “waiting period” between when a divorce is started and the earliest possible date when a divorce can be complete. However, a legal separation can happen immediately.

Another important difference between the two options is that legal separation does not carry the same six-month California residency requirement as divorce. In some cases, couples file for legal separation and then later amend the petition for dissolution of marriage, i.e., divorce, once the six-month residency requirement has been met.

Consulting with a Divorce Helpline attorney can help you determine whether legal separation may be a feasible alternative to divorce in your particular situation. Divorce Helpline attorneys can educate both spouses on the pros and cons of each option, and then help you as much or as little as you need to make the process as fast and inexpensive as possible while making sure all of your legal rights are protected.

Contact Divorce Helpline today and find out how we can help you understand your options and answer any questions you might have regarding legal separation and divorce.

For some people, the financial implications of divorce may make legal separation a more attractive alternative. For example,

• To remain legally married until the ten-year deadline for certain Social Security benefits.
• To remain legally married until the ten-year deadline for military pension enforcement advantages or a twenty-year deadline for PX and commissary benefits.

Another big consideration involves tax implications.

When you decide it’s time to file for a divorce, tax consequences are probably the last thing on your mind. This makes it too easy for you to miss serving your Petition in time to get a final judgment of divorce entered by December 31. And for many couples, being able to file as “single” or “head of household” might save a bundle in federal and state taxes.

This is especially true since the 1993 tax laws. Before, it was mostly high earners who worried about tax strategies. Now, increases in earned-income credit can make it pay for low earners to be free to choose “head of household” as a filing status. For example, if you and your spouse each earn $10,000 per year and have two children, you could save over $3,000 if you each file as “head of household.”

But, because of the six-month waiting period for divorce, if the Petition isn’t served by June 30, you cannot be divorced by December 31. You won’t be free to choose options that can save you money. What to do? Simple: you can get a judgment of legal separation fairly quickly and that will give you wider tax options when next April rolls around. (Learn more about the tax implications of divorce here.)

Legal separation has no six-month waiting period; you can get a judgment as quickly as you can get your papers through the court (a bit sluggish in some counties). Later, you can file another action for divorce. The downside is that you have to pay a new filing fee and, possibly, the cost of having Divorce Helpline or a paralegal complete your divorce paperwork. But the tax savings may far outweigh these costs.

To find out if a legal separation will improve your bottom line, take a trip to your CPA before you take a trip to the courthouse and find out which filing status will work best for both of you. Then decide if it pays to file for separation or divorce.

Finally, there is another strong reason to consider filing for legal separation rather than divorce, and it has nothing to do with money. If either you or your spouse is unsure that you want a divorce, but feel that some legal space is required to gain time to think things through, filing for legal separation is a good option. It is a softer action, one that doesn’t close the door so loudly on reconciliation.

Talk to your Divorce Helpline attorney at 800-359-7004 to see if legal separation is the best choice for you.