When Does A Legal Separation Make Sense?

This article was published in the Chicago Now section of the Chicago Tribune (circa 2011) as part of the Kulerski & Cornelison “The Way We War” series of articles.

Legal Separation is a classic example of how myth and misinformation circulate throughout society and affect our beliefs.

A legal separation is not the first step of the divorce process, nor is it any part of the divorce process. It is its own distinct type of lawsuit that can take as long and cost as much as divorce.

Many people choose to live apart from one another during the pendency of their divorce, but this is rarely, if ever, a “legal separation”. This arrangement does not have a legal designation. The spouses are simply separated.

A legal separation is a way for a person who is living separate and apart from his or her spouse to compel the other spouse to pay support while they live apart. It can also establish parenting time and the spouses’ allocation of parenting responsibilities.

It seems the biggest (and, perhaps, only) reasons that people opt for a legal separation are religious in nature or for the ability to remain covered on the other spouse’s health insurance. Legally separated spouses may also continue to file joint income tax returns.

In divorce, the moving party begins the legal part of the case by filing a Petition for Dissolution of Marriage, which is commonly known as “divorce papers”. The parties then wait their turn in court for a trial, or they settle their differences out in court. If the case goes all the way, it ends with the entry of a judgment for dissolution of marriage. The entire process can easily take over a year.

The same is true with legal separation. In a legal separation, the moving party begins the case by filing a Petition for Legal Separation. The waiting time for trial, the discovery process, expenses, and potential for fighting can be identical to what occurs in a divorce. If the parties cannot agree to the amount of the support to be paid, their matter is contested, and they face the same legal hurdles as do divorcing spouses.

At the conclusion of a legal separation case, the court enters a Judgment for Legal Separation, which sets support amounts and certain other matters, excluding property valuation and allocation. Unlike what occurs in divorce, the court is not empowered to divide property unless it is done by agreement of the parties.

After a Judgment for Legal Separation is entered, the earnings and subsequent acquisition of assets by either party are deemed to be the sole property of that party.

The judgment will remain in effect indefinitely. As in divorce cases, the court may later modify certain terms of the judgment to adjust for any substantial changes in the parties’ circumstances.

The vast majority of legal separation cases are converted to divorce cases by the time the judgment is entered. Many people who do proceed to a judgment for legal separation will later file for divorce. In a such a subsequent divorce action, the parties’ earlier Judgment for Legal Separation serves almost in the same fashion as an ante-nuptial (pre-nuptial) agreement.