Should I file for a legal separation rather than divorce?

When contemplating a divorce, many people wish to know whether it is better to file for a legal separation or a dissolution of marriage. Of course, only you can decide which course to plot that leads you in a better direction for your life. There are several advantages and disadvantages to each type of initial filing, so it’s best to gather information to help you decide which will better suit your needs.

A legal separation will not terminate your marital status. In other words, you won’t be divorced at the end of the process. You will be legally separated, and can still divide your assets and debts, receive child and spousal support, and have custodial orders for sharing time with the children. One advantage to legal separation is that you most likely will still be able to remain on your ex-spouse’s health insurance plan, and if you have costly healthcare needs, and do not have access to low-cost health insurance, this alone is a good reason to seriously consider filing for a legal separation rather than divorce.

Others consider legal separation as the better option when you aren’t really sure that you want a divorce but are concerned about protecting assets, such as when one spouse is overspending or investing irresponsibly. A legal separation can divide the community property assets and debts and assure that at least one-half of the community properties are given to the concerned spouse where they will be better protected. It is even possible under some circumstances for the concerned spouse to be granted more than one-half of the community property if there is a showing that the spendthrift spouse is breaching the fiduciary duty owed to the other spouse to protect community assets.

A disadvantage to filing a legal separation is that you aren’t actually divorced. Your marital status does not terminate, and you could not remarry (legally) if you wish. You can always amend your original Petition and change it to Dissolution, but then you basically (timewise) have to start the process over again, by re-serving the initial paperwork and waiting the appropriate length of time for the Response (30 days) and the statutory 6 months (and one day) after service of the amended Petition, before the Dissolution could be finalized. This isn’t a problem if you aren’t planning on remarrying soon and currently, you do not have to re-pay the initial filing fee (which is a rather steep fee, currently set at $435.00), but if you are using a lawyer, they will charge you additional fees to re-do the paperwork, and it does add up to a little additional work, on your part, and certainly additional waiting time.

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