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Should you file a legal separation?

legal separation

In Nevada, if you wish to dissolve a marriage, there are two options for you:

  1. File a divorce. This is the cleanest option, the one that permanently dissolves the marriage.
  2. Legal separation. If you object to divorce on moral or other grounds, or rely on your spouse for health insurance, your option is to remain married, but legally separate your assets, as well as address child support and visitation through an action for separate maintenance, as it is formally referred to in Nevada, but commonly known as a legal separation.

If you wish to protect yourself from the financial obligations entered into by your spouse after a separation, and you either object to divorce, or you want to take some time before filing one, or one of you must remain on the other’s health insurance, a legal separation is your best option.

If a divorce is filed later, the terms of your legal separation can be incorporated into the Decree of Divorce, or you can make new terms.

Essentially, a legal separation addresses all issues normally addressed in a divorce. The only thing it doesn’t do is permanently dissolve the marriage. In other words, all of your property is divided and all issues regarding any children you might have with your spouse are addressed, but you are still married. Neither of you can marry anyone else.

Issues commonly addressed in a legal separation:

  • Spousal support
  • Child support.
  • Possession of community property and debt.
  • Division of community property and debt.
  • How future income will be handled.
  • How future property bought by either party after the separation will be handled.
  • How future debt entered into by either party after the separation will be handled.
  • Disclosure and modification provisions.
  • Relationship to divorce decree and reconciliation.
  • How the parties will file taxes and who will be responsible for payment of taxes.
  • Who will be responsible for the attorney fees.
  • How your estate will be managed.

Before filing a divorce, which dissolves the marriage completely, especially when you have minor children, it is often wise to consider filing a legal separation first as a way to test if you really do wish to end the marriage.

Below are some circumstances and conditions under which you should look at legal separation instead of divorce:

  • Are you an older couple where medical insurance and spousal benefits are important?
  • Do you have younger children together and wish to cause them minimal trauma? It might be less difficult for them to hear “mommy and daddy are getting separated” instead of “mommy and daddy are getting divorced.”
  • Are you uncertain about forever dissolving your marriage? A trial separation could give you better insight into whether you wish to permanently dissolve your marriage through a divorce.
  • Are you in a long-term marriage? Have you considered the cost and consequences of unwinding the community property? Is it worth the attorney fees, appraisal costs, and expert fees?

Oftentimes, a separate maintenance has a clause that indicates that in the event the parties divorce after the legal separation has been granted, the obligations, duties, rights and responsibilities contained in the decree of separate maintenance (legal separation) will be incorporated by reference into the decree of divorce. It’s wise to do this since not having this clause in your legal separation could add to the cost of your divorce (if you ultimately decide to take this route) where all the issues would have to be re-entered in the final decree of divorce, instead of the decree of separate maintenance being incorporated into the divorce.

You are free to include any provisions in your legal separation as long as they are in compliance in with the law and not against public policy. For example, in Nevada, parties to a divorce or legal separation cannot agree to lump sum child support because the Supreme Court has ruled against it.

If you and your spouse reconcile after a legal separation filing and after the decree has been granted, the decree of legal separation will be terminated. If you separate again, you will have to file a new legal separation, unless the first decree contained a provision that the first decree of legal separation will continue in full force if you reconcile then separate again.

 

 

What is the Difference Between a Legal Separation and Divorce?

In Nevada, when you decide to dissolve a marriage relationship, you have two options:legal separation versus divorce

  1. File a divorce, unless you object to divorce for religious or personal reasons, or you are uncertain if you want to dissolve the marriage.
  2. If you don’t want to completely sever the marital ties, you have the option to file an action for separate maintenance instead, also commonly known as a legal separation.

Couples who wish to protect themselves from the financial obligations entered into by their spouse after a separation, but either object to divorce or want to take some time before filing for one, usually choose this option.

Another reason for choosing a legal separation over divorce is when one party is on the health insurance of the other and does not want to lose the coverage it offers.

If a divorce is filed later, the terms of the Separate Maintenance are incorporated into the Decree of Divorce.

Essentially, a legal separation addresses all issues normally addressed in a divorce, falling just short of dissolving the marriage.

Issues addressed in both divorce and separate maintenance:

  1. Spousal and child support.
  2. Possession and/or division of community property and deb.
  3. How future income property and debt are to be handled.
  4. Disclosure and modification provisions.
  5. Relationship to divorce decree and reconciliation.
  6. Tax issues.
  7. Attorney’s fees.
  8. Estate planning.

Before filing for divorce, which dissolves the marriage completely, especially when you have minor children, it’s wise to consider filing a legal separation first as a way to test if you really do wish to end the marriage.

Below are some circumstances and conditions under which you should consider a legal separation instead of a divorce:

  1. Older couple where medical insurance and spousal benefits are important.
  2. Couple with children who want to cause minimal trauma to children during separation.
  3. Couple who are on the fence about divorce and want to do a trial separation.
  4. Long marriage where the cost and consequences of unwinding the community property is not worth the attorney’s fees, appraisal costs and expert fees.

Often separate maintenance provisions have a clause that indicates that in the event of a divorce the obligations, duties, rights and responsibilities contained in the decree of separate maintenance will be incorporated by reference into the decree of divorce.

In Nevada, a court filing for a separate maintenance cannot be done as a joint petition, as there is no Nevada Revised Statute allowing for a joint decree of separate maintenance, whereas it is possible to file a joint petition for divorce and obtain a decree of divorce.

The parties are free to include any provisions in their legal separations or divorce pleadings as long as they are in compliance in with the law and not against public policy. For example, in Nevada, parties to a divorce or separate maintenance cannot agree to lump sum child support. The Supreme Court has ruled against that.

Courts always reserve the power to look out for the best interests of the children. The contract is between the parents; the children are the concern of the State.

If the parties reconcile after a legal separation filing, the decree of legal separation will be terminated; if the parties separate again, a new legal separation filing will be required unless the first filing contained a provision that the first decree of legal separation will continue in full force if the parties reconcile then separate anew.

In a divorce, there is a six months period of time during which the parties can ask the court to have the final decree of divorce set aside. After six months has elapsed, the parties’ only option if they wish to reconcile is to get married again.

 

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