Legal Separation vs Divorce in Colorado: Key Differences, Similarities, and How to Decide
When a married couple or couple in a civil union chooses to end their relationship, a question that may come up is whether to pursue a legal separation or a divorce. While they are very similar, there are some key legal differences, so it’s important to understand both before proceeding.
SIMILARITIES
A legal separation and a divorce are nearly identical procedurally and result in orders covering the same legal issues, including those related to children (parenting time, decision-making, child support, etc.) and financials (property division, maintenance/spousal support, etc.). As traditional marriages and common law marriages are treated the same, a couple in either type of marriage can pursue a legal separation or a divorce. For a Colorado court to have jurisdiction over either case, one party must have lived in Colorado for at least 90 days, and if the couple has any joint minor children, the children must have lived in Colorado for at least six months (or since birth, if younger than six months old). Both cases have the same steps in court, including filing an initial petition, serving the other party if the petition is not co-signed, exchanging financial information, and attending a final hearing if agreements cannot be reached. Neither type of case is de facto quicker, easier, or more amicable than the other. Both vary in time and costs which depend on many factors, a main one being whether the couple is able to reach agreements or not.
DIFFERENCES
A divorce is the legal process to terminate a marriage, while a legal separation is the process to live separately from a spouse without the termination of the marriage. After a divorce, the parties part ways with separate finances and a custody arrangement for any children. They can also remarry at any time after receiving a divorce decree. For purposes of inheriting from an ex-spouse, unless there is a beneficiary designation or valid written agreement, divorced spouses lose rights to the estate of their deceased ex-spouse as well as any priority to act as their personal representative, agent, and the like.
After a legal separation, the parties also live completely separate lives; however, the parties remain legally married, so they cannot remarry unless they convert the legal separation into a divorce. In addition, absent a marital agreement to the contrary, couples who legally separate still keep their inheritance rights. This means that if one spouse passes away, the other has rights to the deceased spouse’s estate afforded to surviving spouses by law.
CHOOSING BETWEEN A LEGAL SEPARATION & DIVORCE
There are a few reasons why couples choose to legally separate rather than get divorced. A common reason is that divorces conflict with certain religious views and practices. A legal separation can allow the parties much of the same legal recourse of a divorce while upholding their religious values. Sometimes couples also choose a legal separation for financial reasons, such as to continue filing taxes together, to keep a certain health insurance policy, or to preserve inheritance rights. Finally, a legal separation can be beneficial for couples who would like to take some time to assess their relationship—and perhaps even contemplate reconciliation—before experiencing the finality of a divorce.
ONE SPOUSE WANTS A LEGAL SEPARATION BUT THE OTHER SPOUSE WANTS A DIVORCE
One spouse can always proceed with a divorce for any reason—it’s unlawful to force someone to stay legally married. On the other hand, one spouse cannot force the other to proceed with a legal separation if the other wants a divorce. In that scenario, if a spouse files for a legal separation, the other has two options. They can either file a motion to modify the petition for legal separation to a divorce (see JDF form 1107*), or they can wait to receive the legal separation decree, then file a motion to convert the decree of legal separation to a decree of divorce (see JDF form 1321*). However, conversion can only occur six months after receiving the decree of legal separation.
WHAT’S RIGHT FOR YOU?
If you’re unsure which track to choose, given the legal implications, it’s highly recommended that you seek professional counsel who can assess your particular situation—and competently and tenaciously represent you in either type of case. We understand that the end of a relationship can feel overwhelmingly difficult. If you’re in this situation and you’re seeking guidance and/or representation, please contact us today to schedule a consultation with one of our experienced family law attorneys.
*Please Note: While it’s often ideal to retain the services of an attorney, it’s also important to know that representation is not required, and anyone can proceed with domestic relations cases without legal counsel. The courts supply many helpful resources and JDF forms for public use. All necessary forms can be downloaded from the Colorado Judicial Branch website under Self-Help and Forms. The court’s general guide for how to file for a divorce or legal separation and list of other required forms can be found on JDF 1010.