Kevin J. Waite, P.C. | Attorney Blogs

Divorce vs. Legal Separation

North Idaho Attorney Kevin J. Waite, P.C. on Tuesday, March 27, 2018

A frequent question is, whether (for the questioner) a legal separation would be a better option than a divorce.  That question presupposes another question, namely, what is the difference between a legal separation and a divorce?  We will deal with the second question first.    

A legal separation can and frequently does cover all the same issues as a divorce, except of course for the divorce itself.  It is typically called a "Judgment of Legal Separation" rather than "Judgment Of Divorce."  It may have a provision for the conversion of the legal separation to a divorce.  A legal separation is usually a holding pattern; legal separations usually either convert to a divorce or are eventually dismissed, for example because the parties have reconciled.

Usually, the disadvantage of a legal separation is that it does not terminate the legal financial relationship between the parties.  Meaning that they remain married and therefore remain subject to the community property laws (at least in Idaho).  While their Judgment of Legal Separation may work to regulate financial responsibilities between the parties, it does not diminish the rights of their creditors (to go after A for a debt incurred by B even after the separation, if B does not pay, even if A knew nothing about the debt).  Only a judgment of divorce terminates each party's legal responsibility for the debts of the other.

All that mumbo-jumbo aside, there may be a good reason for a legal separation rather than a divorce, but it requires careful examination and analysis of an individual's situation.  Sometimes a legal separation is sought because a party does not want to take the final step just yet.  There may be emotional reasons for this.  There may be practical reasons, such as the need for one party to stay on the other's health insurance long enough to complete anticipated medical procedures.

Of course, a legal separation itself (although not necessarily all of the terms) must be by agreement in the sense that if A wants a legal separation and B wants a divorce, B trumps A.

This blog, like any blog, is not intended as legal advice, and an attorney should be consulted about any specific situation.