What is Legal Separation in Colorado Family Law?
As someone who is contemplating ending a marriage, you likely have a lot of questions. In my years as a family law attorney in Colorado, I understand your need for answers and clarity during this difficult time. One confusing aspect of family law relates to the distinction between divorce and legal separation.
The Difference Between Divorce and Legal Separation
Essentially, you can think of marriage as a legal contract between you and your spouse. The only way to end this agreement is by going through a divorce, which begins when you, your spouse, or both of you file for divorce in court.
As you go through a divorce, you and your spouse or the court (if you cannot agree on the terms) will settle the issues of your case, such as debt and property allocation, custody, parenting time, child support, and spousal support. Once the divorce is finalized at the end of this process, you and your spouse can move forward with your lives and marry again in the future.
With legal separation, however, you and your spouse are still legally married at the end of the process. This is the main difference between legal separation and divorce. Both of these legal processes are similar in the sense that you will deal with issues such as custody and support, but with legal separation, you and your spouse cannot remarry until you have filed for and received a divorce.
When is a Legal Separation in Colorado Appropriate?
There is no one way to determine whether you and your spouse should divorce or legally separate. A separation is often used when one or both parties has not yet made a final decision about ending the marriage or sees the possibility of reconciliation. There are also some divorce cases in which legal separation has been used with couples who have moral or religious objections to divorce.
There are other reasons couples choose legal separation over divorce that I have personally seen in my years as a family law attorney in Colorado, including the scenarios outlined below:
When either or both spouses are hesitant about the divorce, they may use legal separation as a means of easing into the idea or trying things out for a specific period of time.
Couples might legally separate to maintain health insurance coverage or income tax benefits afforded to married people.
If employment or armed forces-related benefits would be lost due to divorce, a legal separation might be more appropriate.
The Legal Separation Process in Colorado
In Colorado, legal separations are handled like divorces when it comes to the process itself. The couple must file a petition in court to ask for the legal separation. One spouse must be a resident of Colorado for at least 91 days prior in order to be able to file in court. The filing of this petition starts a 91-day waiting period.
Your grounds, or the legal reason for your separation, must be included in the petition. Bear in mind that Colorado is a no-fault divorce state, which means you and your spouse do not have to list specific, detailed reasons why the marriage is ending. You can simply state that the marriage is irretrievably broken, and there is no chance of a reconciliation.
Over the 91-day waiting period, the court expects the filing couple to try to negotiate the separation terms on their own. If you and your spouse cannot come to an agreement on all the issues in your divorce, the court exercises its discretion to make these decisions.
When your legal separation ends is ultimately up to you and your spouse. Keep in mind that you cannot request that the court convert your legal separation into a divorce until six months or more have passed since the judge finalized your separation in court. If requested at that time, by either party, the court will automatically convert the separation into a divorce.
Whether you should try a legal separation depends on your preferences and the facts of your case. Due to the important impact of issues like child custody, property division, and child support, it’s critical to work with an experienced attorney so that you understand your rights and responsibilities. Having an advocate in your corner helps diffuse these difficult situations and prepares you for what to expect.