When you and your spouse no longer want to live together or continue your relationship, you may decide to become legally separated. Unlike divorce, which is the formal dissolution of your marriage, you remain married but do not maintain a relationship.
There are some advantages to choosing legal separation over divorce, but this decision is not right for everyone. In this guide, our Denver legal separation mediation attorneys discuss the basics of legal separation and what it might mean for your family.
Many of our clients or visitors 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:
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. But first, let’s look at some of the common reasons why couples choose to legally separate.
Divorce works for some couples, but not for everyone. There are several reasons as to why people choose legal separation over divorce. For example, you may need a break in the relationship and want to keep your reconciliation options open, or you may want to comply with a religious or moral objection to the idea of divorce.
Other reasons why couples may choose legal separation include:
A decree of dissolution of marriage or a decree dissolving a marriage is the legal term for a 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.
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.
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?
Prior to the court’s review and final entry of a decree, the parties can change their mind on whether they wish the judge to enter a Colorado decree of legal separation or of dissolution of their marriage. (A simple Colorado divorce form called a “Motion to Modify Petition” is filed. If one of the parties prefers a decree finally dissolving the marriage, their preference is honored and a divorce decree rather than a decree of legal separation enters.)
Converting a decree of legal separation to one of dissolution of the marriage later (after the court’s review and entry of the decree) is quite simple in Colorado. 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. (For assistance with the divorce forms and this process, see our Colorado divorce law “how to” guide on Converting A Decree of Legal Separation.)
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). The Colorado court’s granting a conversion to a decree of dissolution of marriage is then automatic, and formally changes the name and status of the parties’ legal relationship.
If you and your spouse have children, you will need to for their needs in your separation agreement. Just like divorce proceedings, courts and mediators alike are concerned with protecting the children’s best interests.
Unless an exception applies, it is usually for the best if the children continue to maintain a close, meaningful relationship with both parents. You and your spouse will need to agree on parental responsibilities, time-sharing, and child support.
You will usually need to find answers to the following questions:
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.” (See, in this regard, our website’s article discussing Colorado divorce law’s ordinary formula for temporary spousal support or “temporary maintenance.”) But again, this is quite different than a decree of legal separation, which resolves financial and support issues on a permanent, not temporary, basis.
Look for a future Spotlight article discussing Colorado law and procedure with respect to such temporary orders!
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 adviser! 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 in.
You can choose to set the terms of your separate agreement by pursuing litigation in Colorado family court. However, this process can be lengthy, stressful, and expensive. Pursuing mediation—an alternative dispute resolution process—can provide you with several advantages when compared to litigation.
Mediation involves you, your spouse, and a third-party mediator discussing issues that are of importance to your separation. Instead of leaving critical decisions up to the courts, you and your spouse will build a mutually beneficial agreement together.
Your mediator will help you and your spouse discuss child support, parental responsibilities, and other topics in a respectful manner. This can be especially helpful if you and your spouse struggle to communicate, which is common during these sensitive proceedings.
Plus, mediation can help avoid future legal battles. Because the court is not making these decisions on your behalf, you and your spouse are more likely to be satisfied with the terms of the agreement.
As part of our divorce mediation process at Divorce Resolutions, LLC, we assist Colorado couples in discussing and considering the benefits and drawbacks of choosing to end their marriages with either a decree of dissolution of marriage or a decree of legal separation. As with all divorce-related and family dispute issues, mediation offers substantial advantages to litigation in collaboratively reviewing these choices and developing a sensible plan for your family’s future.
Call (303) 650-1750 or fill out our online contact form to schedule a consultation with one of our Denver legal separation mediators today. All are licensed attorneys, and two are retired judges. From our offices in Westminster and Denver, we offer in-person consultations as well as virtual meetings. We can conduct conferences and mediation sessions for clients outside the Denver area, out of state or overseas via Zoom, Microsoft Teams, Skype and other digital platforms.
(See our website’s section on Why Choose Mediation? for other compelling reasons to consider mediation of your divorce case or parenting dispute.)
Also consider our website’s acclaimed Frequently Asked Questions and Myths resources, where we answer other questions and debunk commonly held misunderstandings − regarding Colorado divorce laws, court procedures and alternative dispute resolution alternatives, such as family mediation.
We're available to meet with you in-person, by telephone, or video conferencing. Close