• William Ellison

Colorado Divorce Basics: Divorce vs. Legal Separation


No Legal Advice Intended: This information is not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems.


What is Legal Separation?

The colloquial definition of the word “separation” is sometimes confused with the legal definition of “legal separation.” People often say they are “legally separated” when they simply mean they physically live separately. There’s a big difference. A legal separation is a legal status and process, it is not accomplished by merely living separately. A legal separation in Colorado follows the same process as dissolution (commonly called divorce), except that the legal status of married remains. Keeping the married status is desired some times for benefits related to taxes, religion, inheritance, or health care reasons. It is important to initiate the process of legal separation or dissolution promptly to protect your rights. See more at the end for the dangers of not initiating the process promptly.


A Legal Separation is Not a Prerequisite to Filing to Dissolve the Marriage

A common misconception is that a couple must separate before a dissolution can be filed. A dissolution (commonly called divorce) can be filed at any time by either spouse and they can continue physically living in the same residence. There are no pre-requisites to filing a dissolution case in Colorado. Either spouse can file whenever they wish and there’s no requirement to physically separate or attend couple’s therapy first.


The Court Process of Legal Separation and Dissolution are Almost the Same

As far as the court process, a legal separation follows the exact same procedure as a dissolution of marriage. The point of each in the court is to disentangle your finances. There is a Separation Agreement reached in resolving both which is final and cannot be later modified.


The only difference procedurally is the Court does not issue a Decree dissolving the marital status. Maintaining the marital status allows you to keep certain benefits of being married such as:

· filing joint taxes (if you agree to do so),

· inheritance rights from each other (which are severed automatically by dissolution),

· possibility of maintaining joint health insurance (though fewer and fewer insurers allow legally separated spouses to be covered and you must check the definition of “spouse” in your particular policy),

Neither party can remarry unless the marriage is dissolved. The legal separation can be converted to a dissolution by a unilateral filing by either party after the passage of six months from the Decree of Legal Separation. There is no other action that must be taken as financial matters are already resolved by the Separation Agreement.


Pitfalls

There are a number of pitfalls if parties physically separate and being living separate financial lives without promptly filing to initiate a legal separation or dissolution of marriage. First, all assets and debts continue to be considered marital so long as you are married. This can create additional confusion and difficulty in dividing finances. Though you may feel like you are earning your own income and the other party is incurring their own debts, this is not how it is viewed legally. There are Colorado cases in which parties physically separated for decades have not been able to keep assets obtained after physical separation from being divided in dissolution—and the same being true of the other spouse’s debts. If you do not act promptly to file after physical separation, you may create a costly uphill battle for yourself in property division.


Read More about Colorado Divorce Basics:

Who Decides My Case?

What is Divorce?

Who Gets to Keep the House in a Divorce?

Is there a Requirement That a Spouse Move Out of the Marital Home?

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