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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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