Legal separation is an alternative to divorce, which allows married people to remain married maintaining the financial advantages of marriage while being able to live separate lives.

When seeking separation, it does not preclude orders about division of marital property, spousal support, child support, or child custody. These types of decisions still need to be made, but factors such as health insurance, social security benefits, joint tax return fillings, retention of military benefits for military spouses, legally pooling resources for higher standard of living, and maintaining a marriage for the sake of religious beliefs can be maintained. Also, it shouldn't be forgotten that legal separation requires certain grounds to be made for it to be official that are different than getting a divorce.couple thinking about divorce

Maintain Your Spouses Health Insurance

Once a couple is divorced, many employer health plans will preclude the coverage of the employee’s ex-spouse. However, in the event of a separation many times the spouse will be able to maintain the employment benefits of the other spouse. (If you go this route ensure you check the fine print in the employment benefit package. Some employers treat a legal separation the same as a divorce, denying benefits.)

Greater Social Security Benefits at Retirement

Marriages exceeding 10 years entitle a divorced spouse who did not remarry to social security benefits equal to the greater of the following (for the lower wage earning spouse)

  • Social security benefits based on their own work record
  • Fifty percent of the ex-spouse social security benefits based on their work record

Due to this law, many people considering divorce, married for seven or eight years, will separate until they cross the 10-year threshold.

IMPORTANT – The total social security benefit amount will be lower if you start receiving them prior to retirement. What this means practically, even though eligibility starts at 62, if your circumstances allow, delaying your benefits until beyond 62 will allow you to receive more each year you delay until age 70.

Maintain the Advantage of Filling Joint Taxes

Many couples save money by filing joint tax returns. If you are married and decide separation instead of divorce, you can preserve that right. (In our experience this works in Wisconsin legally when there is not a maintenance support order and the relationship is still amicable between the two parties.)

Retention of Military Benefits for Spouses

Under the Uniformed Services Formers Spouse Protection Act, if you are a military spouse and have been married for 10 years you are eligible of the benefits.  More details about the benefits set up by of the Uniformed Services Formers Spouse Protection Act can be found by clicking the following link. Click Here

Maintain a Higher Standard of Living

Maintaining two separate households is very expensive, at least for most couples. Due to this fact some couples will divide their home into “his” and “her” areas. What this does in all practicality is allow the couple to maintain a certain lifestyle.

This decision may seem straightforward, but in fact pooling recourses can be complicated. For instance when spousal support is involved, tax law indicates:

“Spouses cannot be members of the same household. Payments to your spouse while you are members of the same household are not spousal support if you are legally separated under a decree of divorce or separate maintenance. A home you formerly shared is considered one household, even if you physically separate yourselves in the home. You are not treated as members of the same household if one of you is preparing to leave the household and does leave no later than 1 month after the date of the payment.”  – More Info

In practical terms spousal support is not be tax deductible for the payer, if the separated spouse is living in the same household.

Abide by Religious Rules and Beliefs

Every couple that chooses a legal separation instead of a divorce is not making the decision solely on financial reasons. Some couples will remain separated for religious reasons to abide by the religious rules and customs they hold dear in their heart.

Weigh Your Options Carefully

The decision to separate rather than divorce is not a simpler decision, only an alternative. Whether you're in a controlling relationship or you have other reasons for wanting to separate, weigh your options carefully and consider consulting with a qualified divorce attorney first. Your best ally in this unfortunate situation is information, so you can make an informed decision. The more information you have the more secure your life will be in both the short- and long-term.

Examples of People Using Legal Separation versus Divorce

Among the most high profile separations is Warren Buffet, the chairman of Berkshire Hathaway. Mr. Buffett separated from his wife in 1977 but remained married until her death in 2004.

Also among some of the more high profile separations is the artist Willem de Kooning who remained separated from his wife for 34 years until she died in 1989.

Both of these examples, especially Warren Buffet, show there are tremendous financial advantages to separation versus divorce. Consider Mr. Buffet who is the second only to Bill Gates regarding wealth in the world (as of 2012). While this may be true, separation is not for everyone. Only you and your spouse will be able to determine if either divorce or separation is the right path for your circumstances.

Dan Exner, J.D.

Family Law Attorney

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