Many people are under the misconception that they are required to “legally separate” before they can get divorced. In most jurisdictions, this is no longer required. If you want to get divorced, you should file for a divorce and not a legal separation. Filing for a legal separation first will only increase the time and expense before the divorce is final.
However, we do run into several recurring situations that lend themselves to a filing of a separate support action (legal separation).
The first and most common situation is when the spouses have separated and one party needs to get support (child support and/or spousal support) from the other - but doesn’t want to file for divorce.
The second common reason is when a spouse has a drug and/or alcohol problem and the spouse filing for legal separation wants to send them a strong message “clean up your act or else”.
Although less common these days, devout Catholics will file for a legal separation because they don’t believe in divorce.
A legal separation should also be considered when the marriage is a little short of ten years. At the ten year mark, a spouse is entitled to one-half of the other spouse’s social security upon retirement (if they haven’t remarried and it’s more than they would be entitled to on their own social security claim).
There can also often be various strategic reasons to file for a legal separation instead of a divorce (such as if the other spouse has a new partner and will probably want to accelerate the divorce process).
Lastly, you should be aware that Courts will usually not divide property as part of a legal separation (although this doesn’t prevent the parties from agreeing to divide property between themselves) and that in most jurisdictions it is possible to counterclaim for divorce when one party files for separate support. Therefore, you might have effectively filed for divorce anyway!
Barry Lewis, Attorney at Law - Divorce Lawyer Massachusetts - http://www.DivorceLawyerMa.com