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Legal Separation vs. Divorce


A “separation” simply means you and your spouse are no longer living together. There is no requirement that you file anything with the court in order to separate, and there is no need for you to be separated before filing for divorce. If you are going to separate, there are a few things you should consider. These include payment of joint obligations and household bills and what arrangements need to be made for any minor children of the marriage.

While a separation may be in order, for your agreements to be enforceable they must be in writing. The courts will simply not enforce verbal agreements between husband and wives. If the courts were to get into disputes over verbal agreements between spouses it is likely an infinite number of cases could be filed. From important agreements regarding financial issues and parenting decisions to trivial matters like who agreed to shovel the walk when it snows and who will take out the garbage, the courts would be inundated with marital disputes.

It is easy to understand that who does the laundry and who cooks dinner are not disputes that rise to a level sufficient to warrant court time and resources. Bottom line, if you and your spouse make agreements that you want a court to enforce they must be in writing and signed by both parties. In addition, once a case has been filed, any verbal agreements are considered an offer of settlement. Offers of settlement are not admissible in court. This means that if you and your spouse come to a verbal agreement, you cannot later hold them to the terms of that agreement, or even bring up the terms of that verbal agreement in a subsequent court proceeding. On the other hand, an agreement reduced to writing and signed by the parties is a Settlement Agreement and is both admissible and enforceable.

How to Obtain a Legal Separation in Colorado

To obtain a legal separation, you must file a petition with the court. In most respects, this is the same as filing for a divorce except that you are not asking the court to dissolve the marriage, just to make rulings regarding property and debt division and child custody issues. The main difference is that when the process of legal separation is completed and the court issues its ruling, the parties are still married. The Petition for Legal Separation and accompanying documents must be filed and served on the other spouse. Just as in a Dissolution of Marriage case, the other spouse can sign waiving service of these documents if they are willing to do so.

Couples choose legal separation for at least one of a few common reasons. The most common reasons are religious beliefs, moral values, or to maintain health insurance coverage. In some cases, the parties wish to establish property and debt division and issues regarding their children and believe they may be able to reconcile their marriage. In cases where at least one party has a religious objection to divorce, a legal separation may be in place indefinitely. In cases where the reason for a legal separation is financial or related to health insurance coverage, it is typical for the legal separation to be in place until the financial reason has become moot.

In any case where a legal separation is requested it is important to know that either party to the divorce may change the prayer for relief and ask for a dissolution of marriage instead of a legal separation. Whether the filing spouse decides they have reconsidered and now want a divorce, or the other spouse decides that they do not want to get a legal separation, but want a divorce instead, if either party notifies the court that they want a divorce, the court will proceed to award a divorce. It is important to note that Colorado is a no-fault state, so if one party wants a divorce, a divorce will happen. There is no legal defense to a divorce that results in the court denying a divorce and the parties remaining married over the objection of a party to the marriage.

Contact a Colorado Springs Family Law Attorney

If you are considering a legal separation it is important that you have the advice of a family law attorney. Contact the Gasper Law Group and one of our experienced family law attorneys will meet with you to explore your options.

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