The advantages and disadvantages of a divorce or a legal separation is a question that I frequently am asked by clients. The explanation is pretty simple.
A legal separation exists when the married couple both sign an agreement in proper form that states that it is their intent to live separate and apart from each other even though they are still married. Couples that have been living apart but have not yet signed such an agreement are not legally separated. The separation agreement will usually contain nearly all of the same provisions that a full divorce
settlement agreement contains. However, the parties have agreed not to immediately pursue the finalization of their divorce. Therefore, all of the provisions for child support, custody, property division and spousal support are usually contained in both agreements. When a year has passed, either party may choose to obtain a divorce based upon their having lived separate and apart for a period of at least one year pursuant to a written agreement.
The advantages of a separation agreement include that health insurance coverage for the spouse that does not have his or her own coverage can be maintained as part of the "family plan" since even though you are legally separated you are not divorced. Couples that are not sure if they want to divorce and wish to leave open the possibility of reconciliation will not have to remarry since they were never divorced. A third advantage of a legal separation is for couples that for religious reasons do not wish to divorce but still want to live separately.
The disadvantage, for some, of a legal separation is that they cannot remarry until a divorce is granted. So if one person wants to remarry and does not want to wait, a separation agreement will not meet his or her needs.
A divorce when granted is final. Recently a case was reported that after a divorce was granted the couple returned to court and asked the judge to vacate the divorce so that they could resume married life. The court held that they must remarry if they want to resume living as husband and wife.
If you would like to discuss this further please call my office to arrange for a consultation.