Legal Separation vs. Divorce

Here in Wisconsin, spouses have two options when their marriage is failing.  The usual choice is to file for divorce. Through a divorce the parties sever the marital relationship and are no longer legally married. The second, and less common option, is a legal separation.  This blog will focus on what a legal separation is and whether or not its benefits are something you should consider.

What is the process to obtain a legal separation?

A legal separation actually goes through much the same process as a divorce.  First a petition must be filed. Prior to the filing of that petition, however, at least one spouse must have resided in the state for at least 6 months and within the county of filing for at least 30 days.  Once the petition is acquired and the summons is served, the court must allow 120 days to pass before a final hearing can be held. In the interim, either spouse may seek a temporary order concerning various matters until the final hearing.

At the final hearing the court will enter orders that sever the financial relationship of the parties.  Further, if there are children of the relationship, the court will also make findings related to custody, placement and child support. At the conclusion of the final hearing the court will determine the status of the marriage.  It is important to understand that a legal separation will not end the marriage.

So why would I want a legal separation if it does not end the marriage?

Depending on your situation, a legal separation may be more suitable than a divorce.  There are several reasons why a spouse may opt for a legal separation. These reasons include:

• Health Insurance

  Once a divorce is finalized, a former spouse cannot legally maintain health insurance coverage under the family insurance plan. On the other hand, several insurance companies recognize a legal separation and allow the insurance coverage to continue. This could be very useful to a spouse who is self-employed, unemployed, or otherwise facing barriers to acquire their own insurance, such as cost and age.

• Reconciliation

A legal separation also makes it easier for couples to reconcile.  Procedurally, through the process of a legal separation, the court must determine that the marriage is “broken”.  Conversely, through the process of a divorce, the court must determine that the marriage is “irretrievably broken” with no chance of reconciliation.

In addition, at any point after a legal separation, the couple may resume their status as married by simply filing a document to vacate the legal separation. Through a divorce, this cannot be accomplished, as you must legally re-marry.

• Personal reasons

  Sometimes spouses do not pursue a divorce due to religious reasons where they are not permitted to divorce. There may even be a fear or anxiety about divorcing, where the parties agree to a legal separation as the better option.

If I am legally separated, can it be converted into a divorce?

As outlined above, there are several reasons why spouses may file for a legal separation, rather than a divorce.  However, people sometimes change their minds. When this occurs, they do retain the ability to convert the existing legal separation into a divorce. Under Wisconsin Law, a legal separation may be converted into a divorce judgment one-year after the legal separation was granted.  This waiting period may be reduced, but only if the parties agree.

If you are contemplating a divorce or a legal separation from your spouse, contact us at J.G. Law to obtain a free consultation, where we can sit down together to determine which approach might be best for you.