A legal separation is just like a divorce, with the same division of assets, custody and visitation orders, and determination of monthly support. However, the husband and wife remain married. There usually is no reason to obtain a legal separation. The same result can often be obtained by filing for divorce and obtaining the division of assets, allocation of parental rights, support orders, while reserving on the termination of marriage. That is, the marriage can be terminated at either a predetermined later date — sometimes years later — or at an undetermined later date in which case the court will terminate the parties’ marriage at such time that the parties agree or one party files a request to do so. The most common reasons parties defer the termination of their marriage include a desire to continue providing health insurance to both parties through one party’s insurance and to enable the parties to continue to avail themselves of the advantages of filing their tax returns jointly.
Because the benefits of a legal separation can be obtained by filing a divorce and delaying — sometimes indefinately — the termination of the marriage, the most frequent basis asserted for filing a for a legal separation in lieu of a divorce is a religious-based opposition to filing for divorce. Additionally, sometimes parties are not fully comfortable emotionally with the idea of filing for divorce as they still harbor hopes of saving their marriage and view legal separation as a smaller first step. In these instances, the parties may choose to later convert their case from a legal separation to a divorce action. This conversion is obtained simply by filing an amended Petition. However, this conversion must take place prior to obtaining a final judgment for Legal Separation. Once the final judgment is filed, a decision to pursue a divorce will require the filing of an entirely new case and will necessarily result in additional filing fees, attorney fees and other costs.