New Mexico Albuquerque Family Law Attorneys Explain the Differences Between Legal Separation and Divorce

Making the decision to end a marriage is difficult and emotional. Many couples consider a legal separation as an option before pursuing a divorce. While a legal separation and divorce share some similarities, there are important distinctions between these two legal processes. As experienced  Albuquerque family law attorneys, we are here to help explain the key differences so you can determine which path is right for your situation.

What is a Legal Separation?

A legal separation is a court-approved agreement to live apart while remaining legally married. In a legal separation, you and your spouse draft and agree to a separation contract that outlines issues like:

– Child custody and visitation

– Spousal and child support 

– Division of assets and debts

– Health insurance and other benefits

Once approved by a judge, a legal separation contract has the same legal force as a divorce. However, unlike divorce, a legal separation does not formally end the marriage. 

Some of the reasons couples choose legal separation over divorce include:

– Religious beliefs about divorce

– Need to maintain health insurance or other benefits 

– Unsure about fully ending the marriage

– Tax implications

How is a Legal Separation Different Than Divorce?

While a legal separation shares similarities with divorce, there are some important distinctions:

Marital Status

The primary difference is that a legal separation does not dissolve the marriage, while a divorce does. After a divorce is finalized, you are legally single and free to remarry. 

Duration 

A legal separation agreement can last as long as you and your spouse agree to the terms. There is no need to convert it to a divorce later unless you choose to. Divorce judgments are permanent and intended to fully conclude the marriage.

 Assets and Debts

A separation agreement will determine how assets and debts are divided, similar to divorce. However, in a legal separation assets and debts remain jointly owned. With divorce, all marital property is permanently divided.

Taxes 

You cannot file taxes as single if you are legally separated. With divorce, you lose the ability to file jointly.

 Inheritance 

In case of death of a spouse, the other separated spouse still has inheritance rights. After a divorce, inheritance rights are terminated unless otherwise stated.

 Health Insurance

Health insurance and other benefits like Social Security can still be received from an estranged but legally married spouse. Divorce ends this eligibility in most cases.

Is a Legal Separation Right for You?

There are a few instances where legal separation may be preferable to divorce:

– You are not certain you want the marriage to be over permanently

– You want to maintain health insurance or other benefits of marriage

– You have religious or personal objections to divorce

– You need time to figure out complex asset division

– You need spousal support but do not want to divorce yet

Consult New Mexico Albuquerque Family Law Attorneys 

Navigating the waters of legal separation versus divorce can be challenging. Speaking with experienced New Mexico family law attorneys can provide the clarity and guidance needed during this difficult transition. Our family law attorneys help clients thoughtfully consider all options from mediation and legal separation to divorce and property division. 

Every situation is unique. Contact us today for a consultation to discuss your situation in depth. Our New Mexico family law attorneys  team will help you make the right decision regarding separation or divorce.

FAQ

What is the difference between a legal separation and a trial separation?

A legal separation is a legally binding court agreement outlining the aaterms of a separation while remaining married. A trial separation is an informal, private agreement between spouses to live apart for a period of time.

Can you date other people if you are legally separated? 

Since a legal separation does not dissolve the marriage, most states consider adultery to be grounds for divorce. Dating other people during a legal separation is generally not recommended and can complicate legal proceedings.

Do you have to go to court to get legally separated?

Yes, a legal separation requires petitioning the court and a judge approving the separation agreement. Without court approval and filing, the separation would be considered a trial separation without legal merit.

How does legal separation affect taxes? 

Filing taxes after a legal separation is the same as when married – you must still file jointly or married filing separately. With divorce, you can file taxes as single or head of household.

Can a legal separation agreement be turned into a divorce later?

Yes, most separation agreements can be converted to divorce by filing additional paperwork. Some parts of the separation agreement may need to be modified to meet divorce requirements. Consulting attorneys is recommended.