Couples having significant marital problems often consider trying to separate before filing for divorce. They may refer to their separation as a “legal separation” but rarely is that the case. Instead, they just mean they are living apart. Terms like “trial separation” and “legal separation” are often mistakenly used interchangeably. However, they have different meanings and legal implications.
Trial Separation
When most people think of a separation, they see it as one spouse moving out of the joint home into a new place while the parties consider their relationship. This is not a legal separation. It is better referred to as a trial separation because the parties view it as temporary. At some point, they will either get back together or file for divorce.
Under Connecticut law, there is no distinction between a married couple living together and a couple who is in a trial separation. The fact that the parties reside in separate households has no legal effect. They have the same rights and obligations to each other as a married couple. For example, spouses have an obligation to support each other and that doesn’t change in a trial separation.
Legal Separation
In Connecticut, a legal separation is an alternative to divorce for couples who no longer want to live together. However, the process is essentially the same for a legal separation and divorce. In both cases, a party has to file in court but they file for legal separation instead of for divorce. The parties then go through the same steps to resolve financial and custody issues, which are then incorporated into a separation agreement that is approved by the judge. Importantly, the practical difference between legal separation and divorce is that in a legal separation, the parties cannot remarry because they are still legally married.
A legal separation can be as time-consuming and costly as a divorce action or even more expensive if the parties later decide to divorce. Either party can petition the court to convert the legal separation into a divorce at any time. In most cases, the separation agreement will be accepted by the court and incorporated into the decree of dissolution. However, the court will inquire about whether circumstances have changed since the original separation took place. If a party’s income or health has significantly changed, spousal or child support may need to be recalculated to avoid impoverishing a spouse and making them dependent on the state.
Reasons to Choose Legal Separation Over Divorce
Legal separation is very rarely used by couples. Typically, those who choose to legally separate do so for religious reasons. In some cases, legal separation may also be used to maintain benefits available to spouses. If neither party has plans to remarry, they may elect to legally separate so a spouse can try to continue on the other spouse’s health insurance. However, that is rarely approved by the local insurance company. Today, this is less of an issue now with health insurance because it is easy for a spouse to get insurance post-divorce and coverage under a spouse’s policy is limited to 3 years under COBRA.
Other Alternatives to Legal Separation or Divorce
If a couple wants to live separately and formally address their rights and obligations in an agreement without the expense of a legal separation, they may want to consider a post-nuptial agreement.
A postnuptial agreement is the same as a prenuptial agreement except that it is signed during a marriage rather than before marriage. It can address most financial and custody issues. However, any provisions that affect child support or child custody are subject to court review.
If you are considering divorce or separation, our attorneys have the experience necessary to advise you on whether a legal separation, divorce, or other option is the best choice for you. Contact us for a consultation.
