Separation is often a misunderstood term. There is more than one reason behind this confusion. To begin, individuals have their own assumptions about what the word means in regard to divorce. Secondly, all 50 states also have a unique definition for the word.
Simply put, separation is when two people cease living together as a married couple through their own agreement or a court decree. But even this definition is up for debate.
According to Lawrence F. King, a Colorado family law attorney-mediator and director of the Colorado Center for Divorce Mediation, a couple can separate and still live under the same roof. “Lots of people are pretty confused about what that whole concept is,” King said of separation. “I think you’ll find in almost all states the phrase ‘legally separated’ really doesn’t mean anything at all.”
Based on Colorado law, King said there are two legal forms of “relief” when it comes to exiting a marriage. A couple can file for a decree of dissolution of marriage (a divorce) or a decree of legal separation (almost a divorce). A decree of dissolution of marriage is the legal term for a decree of divorce in Colorado and several other states.
The decree of legal separation, on the other hand, requires the married parties to separate their finances. “A decree of legal separation is really, in almost every sense, a divorce,” King said. A legal separation in Colorado prevents either party from getting married. Otherwise, they are basically divorced. “There is a simple little gap in making it absolutely final,” King said of Colorado’s legal separation law.
LEGAL SEPARATION
“To say you are legally separated can really cause some problems for people,” King said. For instance, depending upon the state, if a couple is legally separated, it can affect their insurance benefits.
“There is a big confusion in what we are talking about,” he said. “The confusion here may even extend to information informally received from your company’s human resource specialist or retirement plan advisor. If you ask: ‘Does insurance continue, while I am legally separated?’ many personnel only casually acquainted with these issues will assume that you are speaking of the period after you have filed for divorce, and you are living apart from your spouse. Of course, coverage continues during this time, because your marriage’s status is unchanged at that point. However, the coverage may (and generally does) end upon a decree of legal separation being granted, just as with a decree of dissolution of marriage or divorce.
According to King, a couple can decide to separate and even sign off on a separation agreement without legally filing for separation. “There are some people who come to me who want a divorce, but they have unique planning issues,” King said. For instance, depending on the situation, a couple may opt to compile a separation agreement but stay married for shared benefits. “They may be able to secure health benefits,” he said.
King recommends couples considering separation or divorce think about their personal situation and state laws beforehand. “There are obviously people who want to disentangle and don’t want to look backwards,” King said. But people who have been married nine years should definitely get some advice about hanging in there for the 10th year, he said.
King’s advice rides on the fact that couples may lose on social security, military, or tax benefits by divorcing after such a long period of marriage.