Legal separation in family law is different then simply living apart. It is a legal avenue that can have future consequences. For example, after the entry of a legal separation, there is no more martial property. It is either one spouse or the others. In Colorado, when a person gets a legal separation it is a court order. The main difference between legal separation and divorce is that the marriage stays in tact in a legal separation and ends in a divorce. In order to get back together after a divorce, legally you must remarry.
When one party moves out of the family home is not a legal separation. You or your spouse may consider yourself ‘legally separated” but the State will not. It’s common for couples that are getting divorced to move to different homes while the divorce proceedings play out in the courts. Colorado has a 91-day waiting period before a court even has the power to grant a divorce or a legal separation. The time from start to finish for a divorce can be even longer with the negotiation of child custody, support, and division of martial assets can take several months or longer. To you, your friends and family this in-between time waiting for the divorce to go final seems natural and logical to be the separation period. In the eyes of the Colorado domestic courts, however, physical separation from a marriage does not equate to legal separation or change any contested issues in a divorce. A legal separation is a tool for former married persons or partners to split, either financially, physically, or both while keeping the marriage in tact.
The reasons for getting a legal separation could be financial, religious, stigma of divorce or personal reasons, couples that aren’t wiling to swallow the bitter divorce pill may be more suited for a legal separation. For those that decide to petition for legally separation in Colorado, as opposed to seeking a divorce, you are following essentially the same path and there are still waiting periods.
When you become legally separated from your spouse, you are establishing your financial independence from that person through the division of martial assets and debts, establishment of custody, support, and parental decision making for children of the marriage, and any supposal maintenance payments that need to be made under C.R.S. §14-10-103(2). This is similar to a divorce proceeding and can take just as long as a divorce decree. The actual verbiage from The Colorado Judicial Department describing a petition for legal separation reads:
“Document officially commences the legal separation proceeding by requesting a Court Order to arrange the terms of allocation of parental responsibilities, child support, division of property and debts, and payment of maintenance, if applicable, for the married couple to live separately.”
The primary difference is that the parties looking to separate have the potential to retain some of the financial privileges and other benefits in a legal separation that could be terminated by a dissolution or divorce. The difference is Colorado still considers the marriage in tact, so a surviving spouse may have inheritance rights, survivor benefits, and/or social security retirement benefits. This may exclude property acquired by a spouse after the entry of a decree of legal separation. This area of law is extremely complicated; filing the wrong petition could result in a forfeiture of these rights.
There is a place for legal separation. For example, a legal separation is a good alterative to a divorce for persons that have religious conviction or beliefs that either frown upon or forbid divorce. Couples who would like a longer cooling-off period, or are still trying to reconcile may choose this option over a divorce. Of course, you are not allowed to remarry until converting the separation agreement into a divorce decree. The decision to end a marriage is difficult and is not done lightly. For those people that are unsure of their divorce intentions, and still believe that they may still remain together a legal separation could be the right tool.
Neither divorce nor separation is a decision to be taken lightly. It can be intimidating to talk with a lawyer, but when you need information is not the time to shy away. For gentle counsel on these matters, please contact the Law Offices of Laurie A. Schmidt, P.C. You will be treated with dignity and respect as you navigate this very sensitive time of your life.