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Legal Separation

Legal separations are recognized in the state of New Mexico. Many believe that a legal separation is faster, cheaper and easier than a divorce.   However, this is generally not the case.

Often, people inquire into a legal separation with the intent of ultimately getting a divorce.  However, if the goal is divorce, then initially pursuing a legal separation may result in the parties expending unnecessary time and money.

Same Processes, Issues and Costs Apply to Legal Separation as Divorce

All of the issues that are determined in a divorce must be determined in order for the court to grant a legal separation.  These include child custody, child support, alimony,  and the division of property and debt.  Given that the same difficult issues must be addressed in both actions,  there are very little, if any, cost or time savings associated with a legal separation over a divorce.

Thus, legal separations are substantially similar to divorces.  There are a few exceptions. For instance, in a legal separation, the marriage is not terminated, which means that neither party may remarry.

Minor Differences do Exist

In addition, there are minor differences in pleadings that are used in a legal separation versus a divorce.  For example, the petition that is filed with the court is called a Petition for Legal Separation rather than a Petition for Dissolution of Marriage and the final decree that is issued by the court is called a Final decree of Legal Separation rather than a Final Decree of Dissolution of Marriage.

Everything in between will have similar captions while the substance of the proceedings remain the same.   Finally, because a legal separation is not permanent it can be ended by the actions of the parties (i.e. if they begin living together again) which can create problems if people do not behave very carefully after the separation is granted.

Why Legal Separation Over Divorce?

In light of all this, the question arises, why would anyone seek a legal separation instead of divorce?  People get legally separated rather than divorced for many reasons.  The parties may have religious beliefs that do not allow divorce.

The parties may also wish to maintain benefits such as health insurance that would be lost in a divorce.   In the past, this has been a huge and common consideration.  Time will tell if it remains important under the Affordable Care Act.

Perhaps, most common, the parties may wish to sever the community property and debt interests that come with marriage.  This is important when one or both parties are concerned about liability for the other’s debts.  A legal separation will cut off this liability to creditors from the date the legal separation is finalized in court.

Some Inadvisable Reasons for Legal Separation

These are all valid reasons and make some sense.  However, there are many that seek the legal separation for reasons that might be overridden by the legal fees and costs associated with the legal separation.  For instance, some people seek a legal separation as a means of helping them decide whether to divorce.

In these, cases, the parties should carefully consider whether there are options that meet these goals, such as couples therapy or counseling, other than an expensive and stressful legal separation.

In deciding whether to move forward with a legal separation, it is important to carefully consider the implications and costs.  The advice of an experienced divorce and family law attorney should be helpful in making these difficult choices.

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