One of the questions I get often from people contemplating divorce is whether they should consider a legal separation as an alternative. Here are some thoughts about it.
First, there’s a good reason NOT to do a legal separation in Alabama. Because legal separation is unusual and requires special handling, it tends to cost more than an uncontested divorce. For example, I charge $100 more for an uncontested legal separation than I charge for an uncontested divorce. Anecdotally, I would guess that something like 75% of those who use me to prepare an uncontested legal separation return later to do an uncontested divorce (meaning they paid me twice). So if the choice is between an uncontested divorce and an uncontested legal separation, you clearly would pay less with an uncontested divorce.
There’s also a non-financial reason to avoid legal separation. Legal separation leaves spouses in an uncertain Neverland where they’re sort of married, sort of single. Can they date? Can they have sex? What happens if they live with someone? Legally, the answers to these questions are clear, but culturally, they could hardly be more murky. Imagine the conversation between a legally separated person and a possible romantic partner. “So you’re divorced?” “Well, no, not exactly . . . ”
So why would anyone ever choose legal separation over divorce? I think there are four main reasons:
1. Many employers who stop providing medical insurance to a divorced spouse of an employee will continue covering a legally separated spouse. For some of us, that may be reason enough right there. If continuation of health insurance is critical for the nonworking spouse, and if it’s difficult or burdensome to purchase it elsewhere, a legal separation may be the best solution.
2. Some of us still live and work in peer groups where divorce is so shameful, so embarrassing, that we must avoid it at all costs. Some pastors fall into this category, but there are other professionals as well. I remember well the successful attorney who wanted to avoid divorce because the lawyer who led his firm was so disapproving of divorce. If either spouse struggles with this, legal separation may make sense as an alternative to divorce.
3. Legal separation is reversible. Divorce can be reversed by remarrying, but it’s not the same, and we all know it. If either spouse is hopeful that the marriage can be saved, legal separation may be a nice alternative.
4. This is sort of a corollary to #3. If you’re the spouse who wants a divorce, and if you and your spouse are in danger of going to war over a divorce, it’s possible that your spouse would agree to a legal separation. If so, you may find that the legal separation is appealing as an alternative. Yes, you will pay more for an uncontested legal separation than for an uncontested divorce, and yes, you expect that it will be simply a matter of time before you’re back to do an uncontested divorce, but the cost of both transactions is still FAR less than you would pay for an adversarial divorce, and it might offer your spouse a gentler grieving process as well.