What is the Difference Between Legal Separation and Divorce?

When filling out official documents you usually have the option of being single, divorced, or separated.  I didn’t realize until I was older that listing yourself as separated on a form had more implications than “we don’t live together anymore.”  But I never really understood the purpose of separation when you can get a divorce.  I admit, even after practicing a few months in family law, I still didn’t know why.  Now, though, I understand that there is a good reason to leave the option available.

Some historical context is important.  I have to take you way back to the olden days of the 1960s.  Before 1970 a couple could only get divorced for a very specific set of reasons, and one party had to be at fault: (1) adultery, (2) abandonment, (3) felony (domestic violence), and a couple of other minor variations.  That meant that it was very difficult to get a divorce, and people would live in misery for years.  There is even a famous case of a person in New York City who made her living getting “caught” in a hotel room by a “private investigator” with the husband, so that they could prove adultery.

In 1970 California introduced the concept of a “no fault divorce.”  This means that the court didn’t have to find that either person was an evildoer, just that they didn’t want to be married anymore.  The act, signed into law by then governor Ronald Reagan, set forth a new system where the parties would receive counseling through the courts, and then if they still wanted a divorce, they could proceed.  It was designed to get rid of the lies (or, more politely, “legal charades”) and just acknowledge life the way that it really is.  The original law had a thorough system of counselors and assistance before court, they hoped to keep more marriages together that way.  Unfortunately there have always been budget shortfalls, and so the full system never really got off the ground.  But the no fault divorce stuck.

Before no fault divorce was widely adopted, though, the courts needed a way to deal with the legions of unhappy couples who did not want to be together anymore, but who did not qualify for a divorce.  If the courts ignored the problem then there would be thousands of people with no recourse if the other party was not being fair in a separation.  So the courts recognized separation.  This option did not need fault, only that the parties did not live together anymore.  This is the reason for the quaint old name for the procedure: “separation from bed and board.”  Before a no fault divorce, then, legal separation afforded couples a way to divide their assets and debts but avoid a full divorce.

So why do we still have legal separation if it is so easy to get a divorce?  One of the most cited purposes is for religious reasons.  Some deeply religious people believe that divorce is a sin, but also do not want to live with their spouse any more.  A legal separation gives them the avenue to divide their possessions but to not be “divorced.”  Another good reason is that some couples, while they are having troubles, need to separate but don’t necessarily want to get a divorce.  This is particularly the case where there are children involved.  Where a childless couple may just divide the assets among themselves, a couple with children will probably need a child support and visitation order in place.  This allows the parents to work through their issues while still having a court sanctioned parenting plan.  The best reason is that a legal separation is not a divorce.  If the couple reconciles then it’s like the court case never happened.  And they can change it to a divorce at any time.  It offers flexibility that a divorce does not.

If you are thinking about a legal separation or divorce consider the following:

1. Do I think that we might get back together again in the next 12-24 months?
2. Do I have religious feelings that push me one way or the other?
3. Do I want time to think about this before getting a full divorce?
4. Is there a reason to pay all of the court costs to get this official, or can we just come to an agreement?  If you can come to an agreement, both of you write it down and sign it.  That may be better than going through the process of going to court.

If the two of you don’t agree on what will happen, don’t hesitate to consult a lawyer.  We can tell you your options, and how the system works in your state.  If you live in Colorado and would like to know your options, please visit MRutherfordLaw.Com and contact me.

Disclaimer: Nothing on this page is intended as legal advice, and should not be taken as legal advice.  If you have a question you should consult with a lawyer.  Meggin is certified to practice law only in the state of Colorado.  Because of Colorado’s specific and often progressive laws this information will probably not apply to any other state.  If you live in another state you should consult with a lawyer near you.  This post does not confer any attorney client relationship, and no such relationship is formed until you and I have entered into an express contract.  If you have any questions about any information on my blog please contact me at Meggin at MRutherfordLaw.com .