Posted By Irene C. Olszewski, Esq. on November 20, 2012
There is usually a lot of confusion over the difference between a legal separation and a divorce. First, let me clarify that a legal separation is not the same as a married couple simply ceasing to live together while contemplating divorce or reconciliation. People often tell me they are legally separated when, in fact, they are not. They are simply living separately.
A legal separation is an action filed with the Superior Court. It is filed in the same court that would have jurisdiction over your divorce. Jurisdiction is based upon where you or your spouse reside. To find out which court has jurisdiction over your legal separation or divorce, check the handy ‘where to file‘ section on the Connecticut Judicial Branch website. In some cases, you will have a choice of more than one court.
When your lawyer files an action in Superior Court for your legal separation, the court will decide the same issues as it would if you filed for a divorce, such as custody, child support, alimony and the division of property. The key difference between divorce and legal separation is that when a judgment of legal separation has been entered, the marriage is NOT dissolved. Although you and your spouse are free to live separate and apart from one another, you cannot marry another person because you are not divorced.
It is important to know that either party may later petition the court to convert the legal separation into a divorce without having to revisit the orders entered at the time of the legal separation. It’s also important to know that if you change your mind and want to resume your marriage, a legal separation can be undone by both parties filing a declaration of resumption of marital relations in court. Basically, if you and your spouse choose to reunite, you are not required to re-marry each other.
By contrast, if you file for and are granted a divorce, a judge may enter orders for the same issues as they would in a legal separation. Once a judgment is entered, you and your ex-spouse are free to live separate and apart from each other permanently — and either of you is legally free to marry another person. A divorce decree is final. This means that if you later wish to reunite, the divorce action cannot be undone, as with a legal separation. In order to re-enter your legal marital relationship, you must legally re-marry.
People often ask why they should bother with a legal separation if it requires essentially the same procedures as a full-fledged divorce. The simple answer is that there will be orders of the court to protect each party. Let’s say that you and your spouse decide to separate and your spouse promises to pay you a certain amount each week toward support of your shared children and the expenses of the house. He or she then decides not to do so. Without a court decree, you are out of luck (and broke). Promises are not always kept, especially in emotionally charged situations. Legal separation offers assurance that financial obligations will be considered and met by both parties. Additionally, most employer-sponsored insurance plans won’t require exclusion of your spouse in legal separation but will do so under divorce.
If you are sure you want to end your marriage permanently, choose divorce. If you think you might want to reconcile at a later date, legal separation is always an option. For more information on legal separation and divorce, contact an attorney licensed in Connecticut.
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copyright 2012 Irene C. Olszewski, Esq.