Legal Separation vs. Divorce: Which Option is Right for You?While most marriages that breakdown end in a marital dissolution, there are some situations where parties want to avoid an actual divorce in favor of a legal separation. There are common situations where legal separation is preferable to a divorce, but there are also disadvantages to this option because the parties will not be free to legally remarry until they file a separate action for marital dissolution. Because we often receive questions from prospective clients about legal separation, we have provided some answers to frequently asked questions (FAQs) about legal separation in New Mexico.

Why would a person file for legal separation instead of divorce?

The most common reason that parties file for legal separation is that they have religious objections to divorce so legal separation provides a means to live separately without violating the tenants of a person’s religion. Another reason that many people file for legal separation is that they are considering divorce but have not made a final decision. Legal separation allows the parties to keep their marital status intact during a trial separation without the risk of being liable for financial obligations incurred by a spouse during this period when they are not cohabitating.

If a spouse is seriously ill, this also might make legal separation a preferable alternative. Although Obamacare is expected to change the way health insurance functions, a divorce traditionally resulted in a loss of coverage by a person who was covered by the health insurance offered by a spouse’s employer after a brief period of Cobra coverage. This result can impose a harsh burden on the sick spouse because the medical condition constituted a pre-existing condition, so the spouse might not be able to replace the lost health coverage. In this situation, both spouses benefit by not dissolving marital status because the ill spouse maintains his or her insurance coverage while the spouse with the employer coverage often avoids a more extensive alimony award by preventing the loss of medical coverage. Although this justification may no longer be relevant given that Obamacare prevents denying coverage based on pre-existing conditions, it is still unclear how this issue will play out.

Can I file for legal separation if I just moved back after leaving my spouse?

The lack of any residency requirement is a major advantage of legal separation over a marital dissolution. If you have decided that your marriage is over but neither you nor your spouse have lived in New Mexico for six (6) months, you are not eligible for a marital dissolution. However, there is no residency requirement for a legal separation so you can move back to Albuquerque or Santa Fe on a Monday and file for legal separation on Tuesday.

How do the issues addressed in a legal separation differ from those in a divorce?

A Bernalillo County or Santa Fe County family law judge can consider all of the same issues that may be involved in a divorce with one exception. While a legal separation may produce a judgment that covers alimony, child custody, asset and debt division, child support and visitation, the marital status of the parties cannot be terminated in a legal separation. The fact that legal separation does not impact marital status is the fundamental difference between a legal separation and a dissolution of marriage.

How is reconciliation handled in a legal separation versus a divorce?

If you receive a judgment of marital dissolution from your spouse, you must remarry if you wish to have the legal benefits and responsibilities associated with marriage. However, parties that do not follow the property division included in a legal separation can simply start living together again as a married couple.

Legal Representation to Ensure a New Mexico Uncontested Divorce Stays Uncontested

The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.

Because divorce affects estate planning, taxes, health insurance coverage, and other critical issues, our experienced New Mexico Legal Separation Attorneys invite you to meet with us to discuss the advantages and disadvantages of marital dissolution and legal separation. Jay Goodman & Associates offers a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your situation and answer your questions. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.


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