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When legal separation is better than divorce

by Peggy Williams

Co-founder, Divorce Helpline

When you are legally separated, you are financially and legally separate, single people, but you are technically still married. There are financial, emotional, and religious reasons that can make legal separation preferable to divorce.

If for religious or ethical reasons you cannot tolerate being divorced, you can get a legal separation and technically remain married.

Emotionally, if you or your spouse are not sure you want a divorce but you can agree that some formal, legal space is required to gain time to think things through, filing for legal separation is a good option. It is a softer action, one that doesn’t close the door so loudly on reconciliation.

Here are some financial reasons to consider legal separation:

  • If a non-employee spouse has a pre-existing condition or for some other reason will not be able to get medical insurance, some plans allow you to keep a separated spouse on the employee spouse’s health insurance.
  • To remain legally married until the ten-year deadline for certain Social Security benefits.
  • To remain legally married until the ten-year deadline for military pension enforcement advantages or a twenty-year deadline for PX and commissary benefits.

Tax filing status. If you don’t want to file jointly as a married couple in the next tax return, your only choices are “married filing separately,” “single,” or “head of household.” If you don’t qualify as “head of household” and don’t want to file a joint return as a married couple, then your only choice is “married filing separately,” which is disadvantageous and costly. It could save you a bundle to be able to file as “single.” To file as single in your next tax return, you must be divorced or legally separated by December 31.

In many states, there is a waiting period for divorce but no waiting period for a legal separation. For people in that situation, it might be worth it to get a legal separation in order to be done with it by December 31 and therefore qualified to file as “single.” Later, if you want to, you can file another action for divorce. The downside is that you have to pay a new filing fee and, possibly, the cost of having someone complete your divorce paperwork. But the tax savings may far outweigh these costs.

To find out if a legal separation will improve your bottom line, talk to your accountant before you take a trip to the courthouse. Find out which filing status will work best for both of you.