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The term “legal separation” is almost always misused by the general public and even lawyers who do not practice in the area of family law. The term itself is very confusing, so I can understand why. Many people say they are “legally separated” from their spouse when what they really mean is that they broke up and are not getting back together or the relationship is over. Usually a spouse will have moved out or moved to another area of the house until they are ready to move out, however this is not “legal separation” but just “physical separation”. The confusion with the term legal separation is likely due to separation requirement under Illinois law that spouses be physically separated for 2 years before a divorce can be finalized and granted (the 2-year requirement can be waived after 6 months of physical separation). Legal separation has nothing to do with physical separation. A couple could live separate and apart for 20 years and not be legally separated. They would, however, have satisfied the 2-year requirement to get divorced, but would still be 100% married.
Legal Separation is 99.9% the same as divorce.
I say 99.9 because there has to be some difference between divorce and legal separation otherwise I would not be writing this blog post. The only difference is that a couple that is legally separated is actually still married under the eyes of the law when it comes to some legal benefits including: being on a spouses employer sponsored health insurance plan. A legal separation is the same as a divorce when it comes to dealing the issues that people need to deal with to get divorced. In a legal separation the following needs to be determined: custody of children, child support, property division, debt division, alimony or maintenance and all other issues. A legal separation agreement is almost identical to a divorce agreement. The only difference is the title “legal separation agreement” vs. “marital separation agreement.
Legal Fiction
I am not sure why legal separation exits in the law. It is not frequently used by individuals. They usually decide to get divorced when they find out that getting “legally separated” is not any easier or harder than getting divorced. Individuals who are legally separated cannot get remarried to another person until they get a dissolution of marriage (divorce) from their spouse. Legal separation is considered the same as divorced according the IRS so even though parties are legally married, they must file as single on their tax forms. It is my belief that legal separation exists because there was a time when getting divorced was taboo or against certain peoples religious beliefs. These individuals desired to work out all of their “issues” such as property division and spousal support but technically stay married and not be divorced. It gave them a sense of peace and order in their lives without the tag of being “divorced.” Legal separation is a relic of the past, but still exists today and there is no talk of getting rid of it.
Health Insurance
The #1 reason and really one of the only reasons individuals choose to get legally separated and not divorced is so one spouse can maintain his or her health insurance with the other’s spouses health insurance plan usually through that spouse’s employer sponsored plan. This option would not be available to a former spouse. Yes, a former spouse is entitled to COBRA for up to 18 months, however, COBRA is expensive and only lasts 18 months. What do they do after that? If a spouse has serious medical issues and pre-existing conditions they may be uninsurable or insurable at an exorbitant rate. Sometimes over $1,000 in month for premiums.If neither party intends to get married again or it is unlikely that they would find another spouse, then legal separation instead of divorce can save the parties significant money in the short and long term. Both parties benefit from the legal separation not just the spouse that gets to stay on the health insurance plan. The spouse with the plan and usually the spouse who is/was the breadwinner of family, can argue for reduced spousal support during the case and in settlement discussions since the needs of the spouse without the health plan or in need of support will be lower.
Legal separation still exists in the law even though it is frequently not used by individuals, probably because they cannot remarry until they actually get divorced and there are really no other benefits other than health insurance. However, given the current state of health insurance costs and the uncertainty that exits in health care reform, many couples could benefit from seeking a legal separation over divorce in order to keep their former partner on their current health insurance plan and save money for both parties.