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My husband and I had every intention to divorce when we decided to separate.  We shared an attorney who advised us of the different types of divorce options offered where we live.  We were advised our state required a 6 month waiting period to divorce following a legal separation. 

Our attorney suggested we determine the terms of the separation agreement that would include many of the same things in a divorce decree such as: support terms, child custody and housing.  He indicated we should negotiate these terms of the separation agreement as if it would be utilized long-term (longer than 6 months).  We were told the agreement would be the basis for the divorce settlement and that we would be able to make changes before actually creating our final settlement.  

We negotiated with the help of a mediator recommended by our attorney.  Once we determined the terms, our attorney filed the legal separation in the local family court.

My story...

Despite the opportunity to finalize the divorce after 6 months, my husband and I decided to maintain our legal separation.  We were both extremely focused on our family and careers, so neither of us was looking for a new relationship that would lead to marriage (you can not remarry when legally separated).  We had to make concessions with our finances that allowed us to live in separate residences indefinitely.  

Our goal was to transition towards divorce as the kids were older and our finances were more stable.  However, as time passed we recognized the need for family therapy.  The therapy was meant to help with normal family issues that we both agreed would help to have professional guidance to resolve.  

In doing so, we found our own relationship skills as a separated husband and wife could be improved.  We eventually implemented marriage counseling to improve our relationship and communication skills as a separated couple.  As time went on, our relationship evolved into a friendship and eventually a romantic relationship.  Within 4 years following our separation we had a new respect for one another as individuals.  This improved our relationship as a married couple.  Our communication skills improved more in that time period then the entire length of the marriage.   For the first time, I really heard my spouse and what he needed.  He too was more compassionate and empathetic to my feelings and concerns. 

We had renewed romance and faith in one another.  We continued to attend marriage workshops that have provided continued insight into a strong relationship and lasting marriage.  While we were not intending to separate to reconcile, the choice to stay legally separated instead of divorce was the right choice for our family.  We celebrated the renewal of our vows exactly 4 years and 1 day following our separation.

What are the advantages of a legal separation compared to divorce?

Religious beliefs 

If your religious beliefs would conflict with a divorce, then a legal separation can provide you with the opportunity for many of the same legal benefits associated with divorce.  It can maintain the integrity of the marriage, which means neither spouse would be able to remarry unless divorced.  

It can be a cooling off period

Your legal separation agreement will be filed but can be altered later after each spouse has had time to adjust to his/her new lifestyle as a single, but married person.  At which time, a motion can be filed to initiate the divorce based on the original separation agreement. 

After your divorce is finalized, it's uncommon for modifications to be made to your divorce settlement under normal circumstances.  Therefore, the opportunity to improve upon a separation agreement as a "rough draft" in an effort to establish the best possible divorce settlement is helpful.  Also, each spouse will have had a chance to begin their emotional recovery which can reduce stress during divorce negotiations.  

Separate for reconciliation

"Distance can make the heart grow fonder."  Sometimes time apart from one another while seeking marriage counseling is exactly what each spouse needs in order to improve the relationship.  It provides some perspective on what life would be like without one another while a legal agreement stipulates residency, support and custody arrangements.  It can also reduce friction in the home and save a marriage from the on-going damage of arguments.  Marriage workshops and therapy can help a couple learn better ways to deal with conflict so that a reconciliation is possible.

Employer health insurance benefits

Many employer provided healthcare benefits do not provide for a spouse who has been divorced from the primary member/employee.  This means that the non-employee will need to seek benefits through another source.  The primary member should contact his/her Human Resource/Benefits Coordinator to get complete coverage guidelines associated with separation, legal separation, residency and divorce (before filing for either or moving).  The benefit to remain separated instead of proceeding with divorce is that many benefit packages may cover the spouse for a period of time or indefinitely, but will cancel the nonemployee former spouse upon divorce. 

Most plans can also be added upon divorce through the canceled spouse's employer if a health plan is offered since divorce is considered a "life changing event".

Military family benefits

If you are a military spouse and have not been married for 10 years, you may wish to enter into a legal separation instead of a divorce.  After the 10 year term, you will then be able to take advantage of benefits set up by Uniformed Services Former Spouse Protection Act.  However, judges presiding over a military divorce will still have great discretion with asset allocation to include real estate and retirement accounts.   Also, it is important to discuss with your attorney any changes or issues a legal separation will have in the pursuit of these benefits.  It is best if your family law attorney is a certified specialist or a Reservist who will be most experienced in these types of benefits.

Social Security

Certain social security benefits are available to you as a spouse after you have been married for 10 years.  Staying separated instead of seeking a divorce prior to the 10 years of marriage will benefit you if your spouse's draw exceeds yours.  This is because you can draw on your spouse's social security benefit after 10 years of marriage in place of your lessor amount even if you are divorced.  There are rules and stipulations.  Refer to our article How to Collect on Your Ex's Social Security.

-OurDMK.com



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