Pros and Cons of Legal Separation

July 08, 2023

Is Legal Separation the Right Choice for You?

When getting married, everyone hopes that their union will last a lifetime. However, issues can arise in any relationship that may make one or both parties consider dissolving their marriage. If you are facing marital problems, it is vital to understand your legal options before making any life-altering decisions about the status of your marriage. 

If you are uncertain about getting a divorce, legal separation is another choice you may consider. It allows you to separate financially from your spouse and create court-approved parenting plans, child support agreements, and alimony arrangements. In short, it provides many of the same protections as divorce but does not officially end your marriage. 

An experienced Nashville divorce lawyer can outline the pros and cons of legal separation. However, it is essential to personally speak with a trusted lawyer about your specific situation to determine whether it suits your circumstances and needs.

How Does Legal Separation Work?

The process for legally separating in Tennessee is very similar to divorcing, although both spouses must agree to the separation for it to proceed by agreement. If a legal separation complaint is filed by a spouse, the other spouse can counter-sue for divorce at any time. At least one spouse must be a resident of Tennessee for at least six months before filing the petition for legal separation. As part of the petition, you must provide the court with a legal reason (grounds) for your separation. Once you file the paperwork, you will be subject to a mandatory waiting period before the judge can rule on your case. This waiting period is 60 days for couples with no minor children and 90 days for parents of minors.

During the waiting period, you should work on your separation agreement with the help of a qualified lawyer. This agreement is a legally-binding document that sets the terms of your legal separation. Issues that should be addressed in the agreement include:

• Division of finances, including marital property and debts.
• A parenting plan outlining parenting time and decision-making responsibilities.
• Child support arrangements.
• Spousal support (alimony), if applicable.

Why Would a Couple Get a Legal Separation Instead of a Divorce?

When a couple opts for legal separation, it is usually due to various factors related to their relationship, family dynamics, religious beliefs, and/or financial situation. Some common reasons why a couple may decide to legally separate as opposed to divorcing include:

• To give themselves a chance at reconciliation: If the couple is unsure about divorce, legal separation can provide them with a break from their marriage while they sort out their issues. If the relationship can be mended, the legal separation can always be reversed.
• To provide a more stable environment for their children: Couples with minor children may not wish to put their kids through the stress of a divorce. A separation can allow them to settle some of their issues and live mostly separate lives, even if they choose to stay in the same household or nearby for the sake of their children.
• To maintain benefits through their spouse: A divorce will end joint tax benefits and stop one spouse from remaining on the other’s health insurance coverage. Some couples will choose to get legally separated to keep these and other advantages. Legally separated couples also retain the ability to act as next-of-kin and make critical medical decisions for their spouse.
• To keep in line with their religious or cultural beliefs: Divorce is not a viable option for every couple. A legal separation can allow individuals to get out of an unhealthy or unhappy relationship without violating their belief system.
• As an alternative to a fault-based divorce: While Tennessee does provide couples with the option of divorcing based on the no-fault grounds of irreconcilable differences, this can only be done if both parties agree on all terms of the divorce. This is also known as an uncontested divorce. If your spouse contests the divorce and you cannot or do not wish to use fault-based grounds, you can choose to legally separate and not cohabitate for two years instead. You can petition to convert the separation to a divorce at the end of this two-year period, and your spouse cannot stop it. However, this is only an option if you do not have minor children.

What Are the Drawbacks of Legal Separation?

For most couples, the main downside of legal separation is that they are still legally married. Under the law, an individual cannot get remarried until their previous marriage is officially dissolved. Even dating while legally separated can have unexpected consequences. Beginning a relationship with someone other than your spouse while separated may provide them with grounds for divorce, including adultery or marital misconduct. If you are found at fault for the divorce, it can negatively impact your alimony and child custody arrangements. It can also cause family strife and tension with your former spouse, which can make divorce negotiations and co-parenting more difficult.

Legal separation also may not entirely protect you from your spouse’s financial or legal problems. You could still be held partially responsible for your spouse’s debts, bankruptcy proceedings, or any judgments against them for civil lawsuits. If you have concerns about these issues, it is crucial to speak with a knowledgeable family law attorney to determine whether legal separation is appropriate for your situation.

Why Consult a Lawyer if You Are Considering Legal Separation?

It can be emotionally challenging if you have reached a point in your marriage where you are considering separation or divorce. Navigating Tennessee’s complex marriage and divorce laws is often overwhelming, and it can be difficult to determine the best choice for yourself and your family. An experienced, compassionate family law attorney from Brighter Day Law can help you understand all your options for moving forward so you can decide what path is right for you. We will assist you every step of the way to ensure your rights and best interests are protected during the process. Contact our Nashville law firm today to schedule a case evaluation to discuss your unique situation: 615-437-8808.