Should I Become Legally Separated Instead of Divorced?

The difference between legal separation and divorce is a commonly asked question.  Each State may address legal separation differently.  In Tennessee, there are important differences between legal separation and divorce to know before making a decision.

First, legal separation is not the same as a divorce.  It is also not a “cheaper” way to avoid the costs otherwise associated with divorce.

To begin with, Tennessee is somewhat unique when it comes to divorce.  While most States have “no-fault” divorce, the law in Tennessee is a bit different.

Tennessee requires a person who wants to divorce their spouse, without agreement between the two of them, to have legal grounds for divorce.  The statute is quite old, but identifies the grounds for divorce. The statute uses antiquated terms, such as “habitual drunkenness,” as a ground for divorce.

The statute has been amended over time.  Tennessee law now permits a divorce based on “inappropriate marital conduct,” as well as an agreed divorce based on “irreconcilable differences” between the parties.

As one might imagine, “inappropriate marital conduct” and “irreconcilable differences” can encompass all kinds of behavior.  In essence, these grounds permit someone who wants a divorce to assert they have grounds for divorce, regardless of whether it falls squarely within the list of divorce grounds within the statute. It also permits a couple who agree to divorce, to be able to do so without getting into the specifics as to one another’s conduct.

Alleging irreconcilable differences allows a couple to agree to divorce without fighting.  In order to have an irreconcilable differences divorce, however, the parties must enter into a contract, known as a Marital Dissolution Agreement.  That contract sets forth all the details regarding the divorce, and it must divide all of the assets and liabilities between the parties.  It must also include a custody arrangement for the children, and it confirms child support obligations and alimony.  In order to have this type of divorce, therefore, the parties must agree on everything, including exactly who gets what and who owes what as to every marital asset.

In order to legally separate, one must take the exact, same legal actions one does as to divorce.  A lawsuit, called a Petition, must be filed, and the Petition must state the grounds for the legal separation, just as with divorce.

Once the Petition is filed, there is an open, active lawsuit between the parties.  In the case of legal separation the lawsuit is, in essence, asking the court to enter an Order legally separating the parties. This means the parties are still legally married in the eyes of the law, but they also have filed documents in Court, and thereby told the world, that while married, they have separated from one another.

So if the process is the same and the cost is often the same, why would one want to legally separate instead of divorce?  The answer is, generally, legal separation is not the right path for most.  But, depending on the circumstances, it can be.

In a divorce, the parties will either agree, or the court will decide, how to divide all of their assets and liabilities.  The court has the discretion to decide how to divide marital property and marital debts, unless the parties agree and the court accepts their agreement, as in the case of an irreconcilable differences divorce.

Once a legal separation is granted, this stops certain ongoing assets from being considered marital assets.  For example, this means the other spouse will stop having any marital interest in the income of the other spouse. One reason for legal separation, therefore, can be to stop the salary of one spouse from being a marital asset. Otherwise, as a general rule, as long as parties are married, any money that either party earns is considered a marital asset.

There may be other legal or estate planning considerations for parties who want to live separately and divide assets but otherwise stay married. One reason may involve health insurance coverage.  Generally, one spouse may be enrolled in the other spouse’s health insurance so long as they are married.  With divorce, that is not the case. Once the parties are divorced, a divorced party can no longer remain on the health plan of their ex-spouse. Most employer-sponsored health plans also provide that legal separation will make the spouse ineligible for coverage.

That said, a former or legally separated spouse has rights under the federal COBRA law, which allows a divorced or legally separated spouse to continue for a temporary time on the health coverage plan of their ex-spouse.  An unhappy surprise for those planning this, however, can be when they find out they must pay the full cost of the health insurance– and exactly how much it is that health insurance really costs.

An ex-spouse does not pay the price an employee pays for their health insurance.  The ex-spouse will pay the full cost of the health insurance.  Many do not realize how much money their employers spend to cover part of their health insurance premiums, until they see how much this costs. And, the time frame for continuing coverage under COBRA is limited to 36 months following the date of the divorce or legal separation.

Also, once legally separated, the marriage is still in effect for other purposes, which may not be desired.  For example, someone who is legally separated cannot marry another person.  In addition, the debts of the other spouse, or legal problems such as bankruptcy, may remain every bit as real in a legal separation as they do in a traditional marriage.  Accordingly, there may be specialized reasons for a legal separation for a small minority.  But for most, it is not a good option.

Understanding the intricacies of the pluses and minuses of legal separation is critical to making a wise and informed decision.

About the Author:

Stuart Scott is a litigation attorney with over 25 years of experience. He has tried hundreds of cases in both state and federal court. Some of his noteworthy victories have been featured in local, state and national publications. Stuart is also listed as a Tennessee Supreme Court Rule 31 Family Law Mediator. Stuart focuses his primary area of practice on family law. He represents people going through divorce and focuses his efforts on providing his legal services and advice to his clients in this area. Mr. Scott may be reached in our Nashville office at 615-620-1710.