June 2008

MOVING OUT IS NOT A "LEGAL SEPARATION"
By Peter Franklin

Spouses often think that when they move from the marital residence and file for divorce, a legal separation has been achieved. Under Colorado law, however, that is not the case.

In our state, a legal separation is a formal, legal status conferred by a district court upon issuance of a decree at the end of a domestic relations case.

In many respects, an action for legal separation is quite similar to an action for dissolution of marriage. Indeed, the same procedural rules apply to both cases and such substantive issues as parental responsibilities, division of property, and determination of child support and maintenance are controlled by the same laws. The primary difference is that upon conclusion of a divorce, the parties are once again single individuals free to remarry. When parties become legally separated, their rights and obligations are also settled by agreement or court order, but the couple remains married.

Reasons for a legal separation vary from couple to couple, but typically include religious restraints against divorce, and the desire to continue certain benefits dependent upon one's marital status. Once a decree of legal separation has issued, that status will remain in effect for no less than six months. However, any time thereafter either spouse can unilaterally convert the legal separation to a divorce without change to parenting arrangements, property rights and other financial terms.

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