When considering divorce, people often ask whether they should seek a divorce or a legal separation. There are several things to consider when making this decision. The first is that the process that you will go through to get a legal separation is exactly the same process as a divorce. In a legal separation process, if the parties are unable to agree, the Court will decide all issues including parenting, support and asset/debt division, just as the Court would do in a divorce. The division of assets/debts in a legal separation is final, just as it would be in a divorce. Support issues and parenting issues are modifiable in a legal separation, just as they would be in a divorce. The only difference between a legal separation order and a divorce order is that a party cannot get remarried when they are legally separated.
The second consideration is the cost. As the process is exactly the same, and all of the same issues will be addressed, the legal fees and filing fees associated with a legal separation are exactly the same as they would be for a divorce.
The third consideration is the time involved. Again, as the process is exactly the same and all of the same issues will be addressed, it will take just as long to get legally separated as it will to get divorced.
Then why would parties get legally separated and not divorced?
The biggest reason a party might choose a legal separation instead of a divorce is due to religious beliefs. Many people feel strongly that a divorce is contrary to their religious beliefs and therefore, if they cannot remain with their spouse in marriage, they will get legally separated.
The second reason a party might choose a legal separation instead of a divorce is due to the desire to work on the issues in their marriage. Sometimes, while parties are in marriage counseling trying to save their marriage, they want to live apart and need some orders in place to protect themselves. A legal separation can be helpful in that situation.
A third reason a party might choose a legal separation is to give their spouse time to accept the fact that the marriage is over. A spouse may feel better about getting legally separated first, thinking that they may be able to reconcile. After some period of time, it becomes clear to both spouses that the marriage is over. A party can then ask the court to convert the legal separation to a divorce.
Years ago, parties often pursued a legal separation to enable their spouse to have health insurance coverage under the family plan. Before the passage of RSA 415:18, VII-b (requiring group health insurance carriers to provide health insurance to a former spouse for up to 3 years after divorce), a divorced spouse who did not have his/her own health insurance coverage through employment had no other options except COBRA, which was expensive. In many health insurance policies, a legal separation did not trigger termination of a spouse’s coverage, although a divorce did. With the passage of RSA 415:18, VII-b, this is no longer a common factor.
If you or someone you know is considering divorce, contact Attorney Cathy McKay or Attorney David Stamatis on our website, or give us a call at (603) 434-6331 to discuss which option is right for you.0