Legal Separation
Legal separations are recognized in the state of New Mexico. It is not infrequent that a married couple would contemplate legal separation rather than divorce, whether it is for religious reasons or because they mistakenly believe that a legal separation is faster or less complicated than a divorce. However, upon learning of the costs and benefits (or lack of benefits) associated with legal separation, most will opt to go in another direction.
All of the issues that are determined in a divorce must be determined in a legal separation. Either spouse may start proceedings in district court to address those various issues, such as: child custody, child support, spousal support; identification of separate and community property; and, division of property and debt.
Thus, the legal procedure required for, and long-term implications of, legal separations are substantially similar to divorces with a few very important distinctions. The most important distinction is that a legal separation does not end the marriage, which means, of course, that the parties cannot be remarried until the legal separation is converted to a divorce.
Further, parties can end a legal separation by behavior alone, which means that if the parties reconcile and then do not follow the court order dividing their community property and debt, they can effectively end the legal separation and again begin accruing community property and debt.
There are a variety of other issues to consider when looking at a legal separation versus a divorce, including but not limited to: tax issues, estate planning and insurance coverage. For example a divorced spouse is not typically entitled to continued health insurance coverage based on their former spouse’s employment, but may be able to continue that coverage in the case of a legal separation.
As with any legal decision, the advantages and disadvantages of a legal separation must be weighed against the costs. There are often sound financial reasons for a legal separation. There may also be religious reasons. On the other hand, if the legal separation has no real rational basis other than a trial separation period prior to divorce, the parties would be wise to try other alternatives. For example, rather than a costly, time-consuming, sometimes stressful and generally disruptive legal separation, the parties may consider counseling with informal physical separation.
There is nothing stopping the parties from a trial physical separation. The trial separation need not be a legal separation. In fact, if there is any hope of saving the marriage, the conflict, stress and financial burden of a legal separation may be the very thing that pushes it beyond possible reconciliation.
In short, prior to proceeding with a legal separation, the parties should think long and hard about why they need it. Due to the complexities of the issues, it is general advisable to seek the guidance of an experienced divorce and family law attorney before embarking on this expensive process.
All of the issues that are determined in a divorce must be determined in a legal separation. Either spouse may start proceedings in district court to address those various issues, such as: child custody, child support, spousal support; identification of separate and community property; and, division of property and debt.
Thus, the legal procedure required for, and long-term implications of, legal separations are substantially similar to divorces with a few very important distinctions. The most important distinction is that a legal separation does not end the marriage, which means, of course, that the parties cannot be remarried until the legal separation is converted to a divorce.
Further, parties can end a legal separation by behavior alone, which means that if the parties reconcile and then do not follow the court order dividing their community property and debt, they can effectively end the legal separation and again begin accruing community property and debt.
There are a variety of other issues to consider when looking at a legal separation versus a divorce, including but not limited to: tax issues, estate planning and insurance coverage. For example a divorced spouse is not typically entitled to continued health insurance coverage based on their former spouse’s employment, but may be able to continue that coverage in the case of a legal separation.
As with any legal decision, the advantages and disadvantages of a legal separation must be weighed against the costs. There are often sound financial reasons for a legal separation. There may also be religious reasons. On the other hand, if the legal separation has no real rational basis other than a trial separation period prior to divorce, the parties would be wise to try other alternatives. For example, rather than a costly, time-consuming, sometimes stressful and generally disruptive legal separation, the parties may consider counseling with informal physical separation.
There is nothing stopping the parties from a trial physical separation. The trial separation need not be a legal separation. In fact, if there is any hope of saving the marriage, the conflict, stress and financial burden of a legal separation may be the very thing that pushes it beyond possible reconciliation.
In short, prior to proceeding with a legal separation, the parties should think long and hard about why they need it. Due to the complexities of the issues, it is general advisable to seek the guidance of an experienced divorce and family law attorney before embarking on this expensive process.
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