Comparing Divorce vs. Legal Separation

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People often ask what the difference is between legal separation and divorce.  Sometimes they will even ask, “Should I file for divorce or legal separation?”  This is clearly a very personal choice and not a decision someone else can make for you.  With that said, here is what you need to know:

If you are legally separated you are still married.

The main difference between divorce and legal separation is that you are still technically married if you are legally separated.  This means, amongst other things, that you cannot get married to someone else while you are legally separated.  Other than that, legal separation looks very similar to divorce.  In fact, you can make all of the same provisions in a legal separation that you can in a divorce.  For example, you can create a parenting plan, divide pensions, award the home to someone and establish spousal support.  Basically, anything you can do in a divorce you can do in a legal separation.

It is important to understand that the terms of your legal separation will continue to apply if you get divorced unless you both agree to change the terms.  In other words, it is very important that you are comfortable with the terms of the separation now because you probably will not be able to change them later on.

Why get legally separated?

Health Insurance.  The most common reason people get legally separated is because they want to proceed with divorce but they need to be able to maintain health insurance.  Important: Check with your company to make sure that you can cover a legally separated spouse under your health insurance.  Some companies do not allow you to you maintain health insurance for a legally separated spouse.  If you are considering legal separation for health insurance reasons, check with your company first to make sure you are able to maintain coverage.

Religious Reasons.  If you are legally separated you are still married.  Some people find legal separation preferable to divorce based on their faith.

Trial Separation.  Sometimes people will enter into a legal separation as a true trial separation, i.e., they want to see if the marriage can work but want to make sure there are agreements in place about the separation.  This is not a very cost effective way of trying out a separation.  If you really want to try to make your marriage work, you can save yourself a lot in legal fees by separating households and actually trying it out.  Further, the formality of a legal separation combined with working with divorce attorneys may actually make it more likely that your trial separation leads to divorce.

Liability.  In certain situations people are concerned about liability issues related to their spouse.  For example, they may be concerned that their spouse may injure someone in a car wreck and they themselves will be liable.  A legal separation may insulate you from spousal liability to some degree, but as long as you remain married you run the risk of being liable for damage or injury caused by your spouse.

Converting legal separation to divorce.

It is fairly simple and straightforward to convert a legal separation into a divorce.  If you have been separated for less than two years you can simply file a motion asking the court to convert the separation to a divorce.  If one person objects to converting it to a divorce, then a hearing will be set and the divorce will be granted.  If you have been separated for more than two years, it is still easy enough to convert a separation to a divorce but it does require some additional paperwork.  Mediation tends to be a very efficient way to convert a legal separation into a divorce.

Inviting Someone Into Mediation or Collaborative Law

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Mediation and Collaborative Law are both voluntary processes. This means that in order to proceed with one of these approaches, both people need to be willing to participate. You don’t need to be excited about the process (nobody is), but you do need to be willing to actively participate in your own case. One of the most common questions that people have is, “How do I get the other person involved?” Here are a few ideas for getting the other person involved in mediation or a Collaborative Law process:

Talk to them.

Most people who end up in either mediation or Collaborative Law talked between themselves and selected the process they felt would work best. If you have to go through a divorce or custody case, chances are that things are tense between you and your partner. Even if things are difficult, the two of you can probably agree that you would prefer to have a less expensive, more respectful process rather than an expensive, unpleasant legal battle. Educate yourself about the available options and then share the information with the other person.

Share online resources.

This website is a good resource for information about mediation and Collaborative Law. Other good online resources include Mediate.com, CollaborativePractice.com, CollaborativePraticeOregon.com and the Oregon Mediation Association. Consider emailing the other person a link to one or more of these websites. Give them some time to do their own research.

Talk to Forrest.

Forrest is always happy to talk to both people. If you have already talked to Forrest, we suggest that you invite the other person to call the office and Forrest will give the other person all of the same information he has given you. If you haven’t talked to Forrest but would like to, you can schedule a free 15-minute phone call to discuss your situation.

Talk to a friend.

Do you have a mutual friend who has gone through mediation or a Collaborative Divorce? Ask that person to talk to your spouse (or vice versa). Someone who is going through the divorce process is often skeptical, if not distrusting. A trusted friend can be a good way to inform your spouse about the available options. If you don’t have a friend who has gone through one of these processes, you probably have a friend who has gone through the traditional divorce process. Anyone who has gone through the traditional divorce process is likely to tell anyone who will listen that it is very unpleasant process to go through.

Joint consultation.

A joint consultation is probably the best way to get someone involved in the mediation or Collaborative Law process. Joint consultations are effective because both people get the same information at the same time. Further, both people have an opportunity to ask whatever questions they may have. A consultation is a great opportunity to figure out whether mediation or Collaborative Law is a better fit for your particular situation.

Give it some time.

Tensions are always highest immediately after the separation. If you wait for a few weeks or even a few months, it is likely that tensions will have subsided at least somewhat. This is particularly true because people tend to fall into a routine after the separation. New routines tend to have a calming effect on the divorce process. You might talk to your spouse and agree to give it a month before either of you takes any action regarding the divorce.

In conclusion.

There is no “right” way to get someone involved in mediation or a Collaborative Law process. This article contains a few ideas about getting the other person involved in one of these processes. In reality, the right way to get the other person involved is whatever way that person responds to. If you aren’t sure about which approach to take, feel free to give Forrest a call and he will be glad to talk things through with you to help you figure out which approach will work best.