Divorce v. Legal Separation: A Colorado Perspective
By Lawrence F. King, J.D., Colorado Attorney-Mediator
The following article is written from the perspective of Colorado law.
The broad distinctions between "divorce," and "legal separation" and the
significance of these distinctions for separating couples may be
applicable to other states, but should, of course, be discussed with a divorce
professional.
Legal Separation & Being "Legally Separated"- Legal Meanings
Many divorcing parties believe that Colorado law automatically grants couples some special, legally recognized
status when they live apart during a pending divorce. People commonly say: "My spouse and I are legally separated." By this, they typically mean:
"We have filed paperwork with the Court asking for a divorce, and we are now living separate and apart from each other (or at least in separate quarters of our home.)"
This is NOT what Colorado divorce law means by the term "legal separation."
Colorado law provides two separate choices for married parties seeking to
formally separate their lives. At the end of the legal process, the Colorado
judge (or magistrate) enters a final Order, known as either:
- a decree of dissolution of marriage, or
- a decree of legal separation.
We'll look at both of these choices here, and contrast, as a wholly separate
topic, what options in the divorce process are available for married parties
living in separate quarters while a divorce is pending.
Decree of Dissolution of Marriage, or Divorce
A "decree of dissolution of marriage," or a "decree dissolving a marriage" is
the legal term for a final order of divorce or a "decree of divorce" in Colorado (and a number of other states).
A divorce in Colorado establishes the financial obligations of the divorcing
parties, and finally and completely ends the legal relationship for all
purposes. Property must be divided, debts assigned, and, if appropriate, spousal
support determined. For parties with children, the divorce process also requires
resolving parenting issues and establishing child support. Without remarriage,
tax returns must now be separately filed as single or head of household (and not
as married) persons.
Decree of Legal Separation
A "decree of legal separation" absolutely must address each of these same
issues, and has much of the same effect as a decree of dissolution of marriage,
or divorce.
Substantively, as with a divorce, a decree of legal separation in Colorado
declares married parties to be separate persons financially, and without
responsibility for the other's support, debts or taxes, except as ordered by the
decree. Procedurally, parties must fulfill the same filing and service
requirements, and complete essentially the same paperwork as in a proceeding to
obtain a "decree of dissolution of marriage."
So, how is a decree of legal separation different than a divorce?
- Perhaps most importantly, parties whose marriage has ended with a Colorado
decree of legal separation cannot remarry, at least until they take further
legal steps (to convert the decree of legal separation to one of dissolution of
the marriage).
- Additionally, in the absence of a written agreement
providing otherwise, parties who have been
granted a decree of legal separation do not lose their inheritance rights under
Colorado law.
- Although it is fairly rare now (see our further discussion below), occasionally
parties are able to maintain insurance or retirement-related benefits after a
decree of legal separation (which they would lose if they were formally
divorced).
- Social security rules grant former spouses married ten years or more, the right
to receive retirement benefits based on the other's earning history (and
survivor benefits then become available as a widow/widower, upon the divorced
spouse's death, as well). A decree of legal separation can "buy time" while the
parties satisfy the balance of this ten year entitlement.
- Perhaps most commonly, some married couples have religious or moral objections to divorce. For these couples, a decree of legal separation establishes their
economic independence and structures their parenting relationship and
responsibilities, consistent with their faith or beliefs.
- Finally, for many married couples, separating while
contemplating divorce is emotionally overwhelming. The language of "legal separation" is simply more
comfortable and less imposing - at least as the transition begins.
Converting A Decree of Legal Separation to A Decree of Dissolution
Colorado law makes converting a decree of legal separation to
a decree of dissolution of marriage
(divorce) relatively simple. Why? Once again, the process to obtain a decree of
legal separation mirrors the process to obtain a decree of dissolution of
marriage. Both decrees must address and resolve all relationship, financial,
property, support, and parenting issues of the parties.
Converting a decree of legal separation into a decree of dissolution of marriage
thus requires only notice to the other party (formally informing the other party
of your intent to convert the decree no less than six months following the
decree of legal separation), and application to the Court. The Colorado Court is
then required to formally change the name and status of the parties' legal
relationship, and enter a decree of dissolution of marriage.
Legal Options for Separated Parties - Temporary Orders
Colorado divorce law, of course, does allow separated spouses to formalize their
temporary living and parenting arrangements, and to structure their expense and
debt sharing, and support obligations. Such formal agreements may be submitted
to the Colorado court for issuance of so-called "Temporary Orders." But again,
this is quite different than a decree of legal separation, which resolves
financial and support issues on a permanent, not temporary, basis.
Confusion of Terms When Exploring Insurance and Benefits Coverage
As noted earlier, some insurance policies or retirement-related plans may
continue benefits to married parties who have obtained a decree of legal
separation. Such policies or plan provisions are now extremely rare, as economic
pressures on companies have for the most part constricted their benefits. Only a
very, very few older, more traditional companies or retirement plans may allow
policy or plan benefits with legally separated, but not divorced, parties.
The confusion here may even extend to information informally received from your
company's human resource specialist or retirement plan advisor! If you ask:
"Does insurance (or benefits) continue, while I am legally separated?" many
personnel only casually acquainted with these issues will assume (as you might
have, before reading this article!) that you are speaking of the period after
you have filed for divorce, and you are living apart from your spouse. Of
course, coverage continues during this time, because your marriage's status is
unchanged at that point. However, the coverage may (and generally does) end upon
a decree of legal separation being granted, just as with a decree of dissolution
of marriage or divorce.
If continuing insurance or retirement benefits (after a final legal decree) is a
critical objective or issue of concern, then, it is essential to obtain written
confirmation from the respective insurance company or a retirement plan specialist of
how a decree of legal separation will affect these benefits.
ABOUT THE AUTHOR
Lawrence F. King, J.D., is a full-time Colorado
divorce and family law attorney-mediator. Larry is the
director of Divorce Resolutions®, Colorado Center for Divorce MediationTM.
For more information, visit Colorado Center for Divorce MediationTM's
award-winning website, with its Colorado
divorce law news, and family mediation resources, including free
divorce and separation planning tools, Colorado divorce forms and
"Best of the Net" parenting resources.
(www.ColoradoDivorceMediation.com)
Larry can be contacted by phone at (303) 650-1750, or E-mail
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