How Many Years Do You Have to Be Separated to Be Legally Divorced?
Choosing separation over divorce has its benefits. But what happens if your separation lasts for 14 years, and you never got legally divorced? There are certain advantages to being a separated couple, such as remaining on each other's health insurance, keeping social security or retirement plan benefits, or not taking a loss on selling your house. However, a long-term separation could also cause issues for both you and your spouse. Although you can choose separation for an indefinite period, you should understand how the length of time can impact you.
Types of Separation
To understand more about the impact of a separation, you should understand the difference between a legal and nonlegal separation. A court orders a legal separation between a couple, mandating the rights of each spouse during the separation even though they are still legally married. For example, a court can decide on child support, visitation, alimony, or property division. However, the court does not dissolve the marriage as it does so in a divorce.
A nonlegal separation occurs when the couple decides to live apart. A court does not issue an order. Further, the court does not establish rights for either spouse, such as child or spousal support. Although you don't need a court to help you with a separation, you won't have any court orders to rely on if issues occur down the road.
Loss of Communication
If you choose to separate, and your separation lasts for 14 years, it's likely that you'll lose communication and/or cooperation with your spouse. Further, if you didn't legally separate, you won't have a court-ordered separation agreement describing your rights.
After multiple years of separation, you may lose track of your spouse, or you may not communicate with them anymore. Such a breakdown in communication can cause various issues. For example, if one spouse controls the finances, the other spouse may not understand how the other spouse spends the marital assets, such as bank accounts or retirement plan balances. Additionally, one spouse may not have access to specific assets, leaving them in a financial hard spot.
Changing Financial Circumstances
Either or both spouses could have changing financial circumstances during a lengthy separation. For example, one spouse may take a different job that pays less, affecting any potential divorce settlement. One spouse may hide specific assets since the other spouse isn't around to monitor common property and money.
Additionally, your state divorce laws could change, negatively impacting your right to spend time with your children or impact child support paid. Alimony, or spousal support, rules could also change. In fact, many states have been amending these laws over the past few years, leaving the lower paid spouse in a crunch. Finally, your spouse could move to a different state with less favorable divorce laws, ultimately impacting the financial wellness of you alone, or both of you.
Wills and Estates
Remaining legally married can also impact what happens to your assets upon your death. If you divorce, you each become "single" for purposes of state divorce laws. This divorced status impacts taxes and what happens to your assets at your death. With separation, no change occurs regarding your assets at your death.
If you don't execute new wills after your separation, then the division of property falls under your old wills or your state's estate planning laws. In most cases, your spouse will inherit most of your property if you die first. If you don't take the time to deal with your property and other asset issues upon your separation, a court may not be able to honor your last wishes.
Each couple is different. If you've been separated for a length of time and haven't decided how to divide your property or create a plan for your assets, then this is something you should consider doing. Divorce may or may not be the right choice for you. However, understanding the legal impact of separation versus a divorce could save you time and money down the road.
This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.
How Many Years Do You Have to Be Separated to Be Legally Divorced?
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