Tuesday, June 24, 2008

It’s the Law! Divorce and Legal Separation

In Colorado, folks who are married and decide to no longer be together have three choices: separation, legal separation, and divorce.
In a simple separation, the parties go their separate ways with or without a written separation agreement. They are still married. They can’t get married again until they are divorced. They are still subject to the laws of marital property. Absent a well-crafted separation agreement, any income they receive during the separation will be considered marital property and will be split accordingly in any subsequent court action for divorce or legal separation. There are exceptions to this rule that are beyond the scope of this article. The assumption that “whatever is yours is yours” if you get it during a simple separation, could be disastrous.

A “legal separation” involves a court proceeding and a court order. In fact, a legal separation involves almost the same legal principles and paperwork as a divorce. Division of property, maintenance (alimony), child support, and parenting time (visitation) will be addressed in the Court’s order. Six months after the judge enters the order of legal separation, either party may file a motion requesting that the legal separation be turned into a divorce. The motion will be automatically granted. If neither party wants a divorce, the legal separation can proceed indefinitely. If you have a legal separation, you are still married. You can’t get married again until you are divorced.

There can be some benefit to a legal separation as opposed to a divorce. For example, a spouse may be able to stay covered on the other spouse’s health insurance policy. If you are legally separated, the marital property laws no longer affect you. The income you receive during a legal separation really is yours.

Divorce (dissolution of marriage) is the most popular choice when folks part ways. The couple’s financial issues and parenting issues are resolved, the parties are free to remarry, and the parties are no longer affected by the marital property laws.

Remember, you may not understand the law, you may not like it, and you may not think its fair, but it’s the law!