What is the difference between divorce and legal separation?
The difference between divorce and legal separation lies in the Decree, which is granted by the court at the end of the process. In all other respects they are the same.
A Decree of Dissolution of Marriage (divorce) “dissolves” the marriage, changes your status from married to single at the moment the judge signs it. At this time you are declared separately and legally responsible for yourselves except for terms in your separation agreement. You become separate taxpayers in the year of the decree, and are immediately free to remarry. A Decree of Legal Separation does all the same except it does not dissolve the marriage, so you are not free to remarry. It is a legal status of separate maintenance.
Why would a couple choose legal separation?
- Some choose it as a small step apart, not ready or willing to go the full way to divorce but still get some space and perspective.
- Many choose it in order to maintain the spouse on their existing health insurance (usually terminated at divorce). Be sure to check on this before you count on it.
- In some religious groups divorce is grounds for terminating one’s membership. Sometimes legal separation is their solution.
You may remain legally separated as long as you want, it never expires. Nevertheless there are two ways to end a legal separation:
- Dismiss the legal separation case and resume your fully married status.
- Convert the decree of legal separation to divorce. The conversion is a simple motion to the court after 6 months have passed since the decree.
We have some problems, but we don’t want to divorce. What can we do?
Some couples come to mediation in search of what to do about their marital problems. Instead of divorce or legal separation, or more marital counseling, some consider creating a postnup, a marital agreement made after the marriage (in contrast to a pre-nuptial agreement which is made before). Made with a goal of continuing the marriage, it can address very specific matters or very broad issues, or both.
Many marital agreements are financial, about allocation of incomes, or defining certain assets as “his,” “hers,” or “ours,” or committing to a plan for spending and saving, or other financial goals. Some have been about challenges with gambling, alcohol, drugs. Others want to negotiate terms for living apart, to “get some space,” take a break, and perhaps work on their relationship, or make specific commitments to more and better communication.
What do we have to say about our children in our divorce papers?
You will need a written parenting plan to detail how you will manage your parental responsibilities from two households until the children are no longer minors. There are two aspects of parental responsibilities that you must address.
- First, parental decision-making. This refers to major decisions about the children, such as their health and medical care, education, and anything affecting their general welfare. You may include decisions about religion, spirituality, ethics, if you wish. Will you make these decisions together, jointly, which requires a commitment to good communication, or will you assign them to one of you to make individually?
- Second, parenting time. For most, this means creating a basic schedule over a week or two, where the children have parenting time (usually including overnights) with each parent. Then consider which holidays are important to you, and whether you want to have a holiday schedule that will override your basic schedule. If you live a long distance apart, parenting time could be limited to summer, winter break, spring break, and three-day weekends.
Research shows that parents who mediate these matters are far more likely to have long term family relationships with their children, than are parents who argue in court.
We need help with all the divorce forms.
Hauer provides the appropriate court forms for a friendly divorce, and assists you with completing them for the court. Couples often fill them out together in the mediation session, in order to be certain that the written information is consistent with their facts, as well as with the agreements reached.
When you’re common law married, do you still need a divorce?
Yes, you need a divorce. There is no “common law divorce”. A common law marriage and one with a license and a ceremony are legally the same in Colorado. Both are marriages.
As long as we agree, the court will approve our agreement, right?
Not necessarily. After reviewing your papers, the court must make the findings (state on the record, “I hereby find . . . ”) that your settlement is fair to both of you, and the parenting plan is in the best interests of the children (if there are minor children). If the court cannot make those findings, or if your papers are inconsistent, jumbled, unreadable, the court can reject your agreement and send you back to the drawing board.
Who can I talk to about divorce?
Call us, (303) 526-7749, and talk to Arden for a few minutes at no charge. She does not take sides. Rather, she takes a holistic approach to the benefit of both parties.