Separation: Depending on the State, You Might Need an Attorney, a Mediator or Both
Separation is often a misunderstood term. There is more than one reason behind this confusion. To begin, individuals have their own assumptions about what the word means in regard to divorce. Secondly, all 50 states also have a unique definition for the word.
Simply put, separation is when two people cease living together as a married couple through their own agreement or a court decree. But even this definition is up for debate.
According to Lawrence F. King, a Colorado family law attorney-mediator and director of the Colorado Center for Divorce Mediation, a couple can separate and stilllive under the same roof. “Lots of people are pretty confused about what that whole concept is,” King said of separation. “I think you’ll find in almost all states the phrase ‘legally separated’ really doesn’t mean anything at all.”
Based on Colorado law, King said there are two legal forms of relief when it comes to exiting a marriage. A couple can file for a decree of dissolution of marriage (a divorce) or a decree of legal separation (almost a divorce). A decree of dissolution of marriage is the legal term for a decree of divorce in Colorado and several other states.
The decree of legal separation, on the other hand, requires the married parties to separate their finances. “A decree of legal separation is really, in almost every sense, a divorce,” King said. “A legal separation in Colorado prevents either party from getting married. Otherwise, they are basically divorced. There is a simple little gap in making it absolutely final,” King said of Colorado’s legal separation law.
LEGAL SEPARATION
“To say you are legally separated can really cause some problems for people,” King said. For instance, depending upon the state, if a couple is legally separated, it can affect their insurance benefits.
“There is a big confusion in what we are talking about,” he said. 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 continue, while I am legally separated?’ many personnel only casually acquainted with these issues will assume 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.
According to King, a couple can decide to separate and even sign off on a separation agreement without legally filing for separation. “There are some people who come to me who want a divorce, but they have unique planning issues,” King said. “For instance, depending on the situation, a couple may opt to compile a separation agreement but stay married for shared benefits. They may be able to secure health benefits,” he said.
King recommends couples considering separation or divorce think about their personal situation and state laws beforehand. “There are obviously people who want to disentangle and don’t want to look backwards,” King said. “But people who have been married nine years should definitely get some advice about hanging in there for the 10th year,” he said.
King’s advice rides on the fact that couples may lose on social security, military, or tax benefits by divorcing after such a long period of marriage.
WHY SEPARATE?
“Separation is often kind of a kinder, gentler path to move to a complete concluded divorce,” King said. “For some of those people, one partner really knows that they want to move forward.” Therefore, separation is just a way of providing the other party some time to acknowledge the marriage is over before proceeding with a divorce.
However, separation doesn’t always lead to divorce. For instance, King recently had a couple hire him to mediate a separation agreement that they ended up not using. This week I had a couple that came in. they did the whole work with me, and then as just as they are about to file for divorce they said ‘I don’t know if I want to do this, he said. “They decided to come back in and didn’t file. But they perceived it worthwhile to gather up those agreements. If the reconciliation doesn’t proceed, they can access that stuff and use it.”
King said it is not uncommon for a couple to separate, establish an agreement and reside under those terms without seeking a divorce. “Some people manage to have separate residences for very long period of times,” he said. Data from the United States Census Bureau backs up King’s claim. Information from census found that more than 4.5 million American men and women reported themselves as married but separated in 2000.
A couple can also separate and live in the same house, “People seem to worry about that, it (living together) doesn’t really matter if you want to move forward and separate your world.”
THE SEPARATION AGREEMENT
“When couples do decide to separate, for whatever reason, a separation agreement can be worked up to establish guidelines of the breakup,” King said.
According to the American Bar Association, a separation agreement is a contract between a husband and wife when they separate from each other. In this document they resolve such matters as property division, debts, custody and support. “More often then not, a separation agreement is compiled through the assistance of a mediator or attorney. The most common reason many come to see lawyers and mediators is that they want some sort of security and protection as they live apart,” King said.
“The separation agreement, when legally filed, is essentially the foundation for the divorce. If a couple legally files, they do all that work and the judge blesses that and at some point she says let’s call it the real deal, the judge will sign it,” King said. In short, the hardships of ironing out the details of the divorce are already determined with the separation agreement, making the actual divorce as simple as a judge’s approval.
In some cases, King’s clients don’t want to legally separate. “They just want to establish their personal and financial requirements with a signed separation agreement. They basically come in and say ‘we need some court papers that absolutely create order and obligation,'” he said.
USING A MEDIATOR
While an attorney can map out a separation plan, King recommends using a mediator. “I help people who have an objective and structure it intelligently,” he said. “There are couples who are working on that with a (lawyer), but they want to get some communication and some structure and they want the assistance of someone neutral.”
Dr. Lynne Halem of the Centre for Mediation & Dispute Resolution Online in Massachusetts agrees with King. According to Halem, who has been featured in the Boston Globe for her work in divorce mediation, mediation provides a neutral setting that allows both parties to agree on specific issues. “The great thing about working with a mediator is nothing is hidden. Everyone is looking at each other in the face and there are no surprises,” Halem said. “We don’t care about the past.”
According to Halem, mediation is different from the legal process. “You are learning how to deal with each other and iron things out and make decisions, you are learning a skill set when working with a mediator,” she said. Halem also notes that mediation is statistically successful. “Ninety percent of the cases that finish in our office are amicable at the end,” she said.
LEGAL SEPARATION VERSUS DIVORCE
By definition and depending on the state legal separation and divorce are different. Here is some information on both from the Colorado Center for Divorce:
1. Couples who file a decree of legal separation cannot remarry until the decree has been converted to a divorce or dissolution of marriage.
2. Depending on the state, the absence of a written separation agreement, spouses who are legally separated most likely will retain their inheritance rights under state law.
3. While uncommon, certain couples may be able to maintain their insurance and retirement-related benefits after a decree of legal separation has been filed. This depends solely on the benefit provider’s policies.
4. In the event of a couple that has religious or moral objections to divorce, a decree of legal separation can be used to establish economic independence. Furthermore, the agreement can provide structure the parenting relationship and responsibilities as outlined by their beliefs.
5. Social security rules grant former spouses married 10 years or more, the right to receive retirement benefits based on the other’s earning history. A couple can utilize a decree of legal separation to buy time” while they satisfy the balance of this 10-year entitlement.
6. Lastly, for many married couples, separating while contemplating divorce is emotionally overwhelming. The idea of legal separation is often an easier way of introducing the concept of divorce into the relationship. Essentially, legal separation can begin the process of a divorce.
TIPS FOR A SEPARATION AGREEMENT
If you and your spouse plan on developing a separation agreement with or without the assistance of a mediator or attorney, there are a few things to keep in mind.
1. Financial Needs?
Depending on the established living arrangements, each party will need to establish a monthly budget. The budgets will depend on who will live where during the separation. In some situations, a couple may opt to host temporary support arrangements that allow them to finance two households with joint funds.
2. Custodial Questions
If there are children involved in the marriage, it is important to address issues surrounding the children. For example, were will they live, how often will they see the other parent? When, how and where will visitation take place. How will the parents communicate about the children and exchange information such as school updates? Lastly, who if anyone will pay child support during the separation and how will the financial needs of the children be met?
3. Property?
In general, the couple’s assets should be addressed. In some cases, it may be there is a need to freeze the assets until further agreements can be made. Or, the couple can opt to separate out their assets, including different bank accounts and miscellaneous funds. Lastly, the use of credit cards should be defined and settled on in the agreement.
4. Miscellaneous Issues?
Lastly, the couple can address their concerns and plans regarding life insurance policies, health insurance coverage, taxes, social security benefits, and beneficiary holdings.
– Source, Centre for Mediation & Dispute Resolution Online & Colorado Center for Divorce
About the author: Casey Clark Ney is a freelance journalist based in Boise, ID. She holds a B.A. in Communication and has more than six years experience in newspaper and magazine writing. Her Web site can be viewed at www.CaseyClarkNey.com. E-mail correspondences can be sent to caseyclarkney@earthlink.net.
