Separation or Divorce: Pros and Cons of a Critical Choice There are legal considerations to mull when your marriage is on the rocks. BY LAWRENCE R. JONES
Before you consider taking the final steps in your relationship make these considerations.
“ Some [insurance] policies now contain provisions which excludes coverage following separation, or what is referred to in some states as a 'divorce from bed and board.'”
What is the difference between a separation and a divorce? With a separation, you may be living in a different residence than your spouse, but you are still legally married. With a divorce, the marriage is legally over, even if you still happen to be living with your ex. A person may seek a separation instead of a divorce, or vice versa, for various reasons. Five common considerations include the following:
1. Genuine Possibility of Saving the Marriage: If you want to live separate from your spouse, but believe that there is a reasonable chance of saving the marriage, through counseling or otherwise, then consider a separation instead of a divorce. Of course, some people reconcile and even re-marry each other after divorce. Meanwhile, you may have spent substantial time and money unnecessarily by jumping the gun to divorce and terminate the marriage, only to change your mind after the fact.
2. Health Insurance: A frequent reason why some people do not choose to divorce is because they wish to stay on their spouse’s work-related family health insurance plan. Generally, an ex-spouse does not qualify as a family member following divorce, but in some instances may "COBRA" the health insurance benefits at a price which for many people is very expensive and cost-prohibitive. COBRA stands for "Consolidated Omnibus Budget Reconciliation Act" and is a federal law that may allow you to temporarily keep health coverage—you pay 100% of the premiums plus a small administration fee.
If, however, the parties are separated but still married, it is possible, but not guaranteed that the non-employed spouse may remain on the policy. Some policies now contain provisions which excludes coverage following separation, or what is referred to in some states as a "divorce from bed and board." Therefore, if health insurance is a concern, it is important to first carefully check the specific language of the insurance policy to make certain that you fully understand how separation may affect your coverage.
3. Joint Income Tax Filings: Another reason some couples prefer separation over divorce is if they are still technically married they may be able to file a joint tax return by mutual arrangement, and share any resulting refund. Some people may do substantially better on their tax returns by filing jointly instead of separately. Other people, however, choose not to file a joint return, particularly if a spouse’s purported income is questionable or lacking in credibility.
4. Unequivocal Desire to End Marriage: Some people are so absolutely certain of their desire to end a marriage that they want a divorce yesterday. They do not want to spend additional time, money, and energies delaying the inevitable by first undergoing a lengthy trial separation, and may in fact have been planning a divorce for a long time.
5. Establish "End of Marriage" Date: Some people prefer filing for divorce in an effort to establish an "end of marriage" date. In many states, the cut-off date for determining the end of the parties’ marriage is not the date of the judgment of divorce, but the date of filing the complaint for divorce. For example, if parties have been married for exactly nine years, and they then separate and live apart for two years before either party files a complaint for divorce, a court may possibly consider the marriage to have been 11 years rather than 9 years in length. The marriage length can potentially impact issues such as alimony, and may also possibly affect the distribution of assets acquired during the period after separation, which is considered part of the marriage. While a couple can agree to a different cutoff date, such as the date of the separation, this may potentially require the consent of both parties or decree of the court based upon specific factual circumstances.
There may be other personal considerations on the issue of separation versus divorce. Sometimes, parties start off in divorce litigation, but decide before conclusion to dismiss the matter and either stay separated under a written agreement or consensual court order, or attempt a trial reconciliation or counseling.
Any person who is unsure whether to seek a divorce, either before or after separating, should logically consult in confidence with an attorney regarding the pros and cons of each potential choice. Moreover, many marriages can potentially be saved—and perhaps even strengthened through the addressing of previously ignored issues—if both parties give each other a reasonable opportunity to do so.
Lawrence Jones is a contributing columnist and former Judge of the New Jersey Superior Court until his retirement from the bench in 2017. He is the author of numerous precedential judicial opinions and published legal articles, and is a speaker and educator on legal issues. He currently practices mediation and arbitration. You may visit Judge Jones’ website at www.LawrenceRJones.com. Every case is unique, and this column is not intended to provide specific legal advice regarding any person’s individual matter.