Marriage is a legal contract between two adults, and divorce is the only legal way to terminate the agreement. Divorce begins when one (or both) spouse files a petition (request) for dissolution of marriage. During the process, the couple or the court will determine how to allocate custody and parenting time, child support, spousal support, and property and debt division. At the end of the divorce process, the court dissolves the marriage, and both spouses are free to remarry and move on with their lives.
The primary difference between divorce and legal separation is that at the end of the separation process, the couple is still married. Both legal methods are alike in that the court determines how to deal with the same legal issues, but with separation, neither is free to remarry unless the spouses ask the court to convert the separation into a divorce.
There's no hard and fast rule for how to decide whether divorce or separation is right for you. Some couples choose legal separation because they need a break from the relationship, but there's still a chance for reconciliation and divorce is too permanent of an option. Others may opt for separation over divorce because either spouse has religious or moral objections to the stigma and status of a divorce.
Some other common reasons why a legal separation may be appropriate may include:
The process for legal separation in Colorado is the same as divorce. First, the couple must file a petition (request) for legal separation with the court. At least one spouse must meet the state's residency requirement, which means living in Colorado for at least 91 days before filing for separation. Additionally, you'll need to wait at least 90 days before the court can act on your case.
Your petition for separation must include a legal reason, or grounds, for your request. Colorado is a no-fault divorce state which means that the court doesn't require either spouse to point fingers at the other to prove the marriage is over. The same rules apply for a legal separation. Couples can meet this requirement by telling the court that the marriage is irretrievably broken and there's no chance for reconciliation.
During the three-month waiting period, the court hopes that the couple will negotiate the terms of their separation. Both spouses must agree to the terms of custody, support, and property division, and if you can't, the court will decide for you. Once the judge signs the separation agreement (court order), each spouse is free to live an independent life from the other.
It's common for life to change and often the legal separation will end when one spouse wants to remarry. In Colorado, it's important to understand that neither spouse can ask the court to convert the separation into a divorce until at least six months after the judge ordered the separation.
Trial separations are a method used by couples who want to give themselves breathing room or test the waters for permanent separation or divorce before heading to court. During a trial separation, the couple will live apart for a specific period and at the end of that time, decide to reconcile, file for separation, or file for divorce.
Typically, couples will verbally agree to the terms of the break, including custody and support, who will stay in the home or move out, and how long the trial separation will run. Couples who would like to protect themselves may want to create a written document that details these terms.
Regardless of the type of legal action you choose to pursue, the court permits and encourages parties to work together to create a separation agreement. Judges will typically approve your agreement if it's fair and reasonable to both spouses. If the court doesn't believe your proposed arrangement is proper, the judge may choose to alter it, or throw it out and create a new document altogether.
This legally binding contract is a document that includes all issues relating to the separation, and should cover the following information:
Like divorce, the court's primary concern during a separation involving children is to protect the children's best interest. In most cases, it's best for the children to have a meaningful and continuing relationship with both parents, but if the parents don't agree to share custody, the court will evaluate what's best based on a specific set of factors. The court will usually consider which parent can provide a home, food, clothing, love and affection, and structure for the child.
In some cases, it might be appropriate for the court to require the parents to attend mediation or parenting classes before deciding custody. Typically, if parents can't agree, the court will assign physical custody (where the child will live) and legal custody (who will decide significant issues about the child) and create a visitation schedule for the non-custodial parent and the child.
The law doesn't require couples to hire an attorney during a legal separation. However, the rules regarding separation are ever-changing, so it's helpful to discuss your case with an experienced family law attorney near you.
Emotions often run high during the legal process, and most people benefit from consulting with a local divorce attorney.