Spouses struggling with their marriage sometimes choose legal separation instead of divorce. There are several reasons for being legally separated. You may also need to execute an agreement to formalize your respective rights and obligations concerning different marital matters. If you have questions about legal separation, turn to the experience of Matteucci Family Law. Attorney Bob Matteucci can review your case, help you decide whether a legal separation is right for you, and then start drafting and filing the necessary paperwork.
What is a legal separation?
Spouses who have physically separated from one another may file for a legal separation. This is not the same thing as a divorce, so it does not end the marriage or free either spouse to remarry. Rather, a couple who chooses to live in different residences may separate on either a trial or permanent basis.
Trial separation is what married couples often use to decide whether they want to end the marriage. Divorce is difficult, and the permanency of it can be frightening even to couples with the most troubled marriages. On top of that, if you’ve been married a while, the idea of suddenly ending what you spent years to build could prove difficult. Although you don’t need the court’s permission for a trial separation, remember that you will still be considered married. That means all legal provisions concerning debt, spousal support, and other matters will remain in place.
On the other hand, permanent separation is more involved and will require legal action on the part of the spouses. A permanent separation is exactly what it sounds like: the spouses plan to live separate and apart permanently. But it is also not a divorce. Another difference between this and a trial separation is the importance of drafting and executing a comprehensive separation agreement. Since the spouses will still be considered married, they need to decide who will be responsible for:
You should note that these are the same types of issues that have to be addressed in a divorce. While it is recommended that the spouses settle these matters on their own, court action may be needed if they cannot agree.
Is it better than divorce?
Living separate and apart from your spouse, permanently, sounds a lot like divorce. On top of that, you will need to decide many of the same issues you would need to resolve if you got a divorce. So what’s the difference? The reasons that spouses choose to separate, instead of dissolving the marriage, include:
- Religious reasons. Some religions forbid divorce, so a permanent legal separation allows them to do what’s best for their families without violating their beliefs.
- Uncertainty about divorce. Some couples simply are not ready to divorce and want to live on their own for a while to decide if they want it.
- Time to reconcile the marriage. Similarly, some couples just need time apart so they can work through their difficulties with an eye towards getting back together.
- Benefits. Some spouses want to stay married so they can retain certain marital benefits such as health insurance or Social Security.
How do I obtain a legal separation?
As mentioned above, spouses who opt for a permanent legal separation will have to decide the same kinds of marital issues that arise in a traditional divorce. In the same way that a Marital Settlement Agreement can accomplish everything related to a divorce, a separation agreement can formalize the terms of the spouses’ permanent separation.
A legal separation agreement is a written document that explains the spouses’ rights and obligations related to child custody, asset division, and everything else the parties have to settle. If you and your spouse agree on all issues arising out of your marriage, an experienced New Mexico family law attorney can help you draft and execute a separation agreement.
But perhaps you and your spouse agree on some issues, like child support, but have not resolved others such as spousal support. Or you agree with each other on the broad issues but have not yet worked out the details. In situations like these, mediation may be a viable option. During mediation, both parties turn to an experienced mediator to facilitate positive discussion and help both parties reach an agreement. However, in order for mediation to work, there needs to be a certain level of trust between both partners. A collaborative approach, similar to collaborative divorce, may also be an option for spouses who want to work for their mutual benefit, rather than against each other.
If you and your spouse cannot resolve these matters out of court, then a judge will have to weigh in. Either spouse can begin legal separation proceedings and ask that the same matters above be decided by the judge. It may take as long as a traditional divorce to achieve full resolution of these issues, with the major difference being that you are still legally married at the conclusion.
How a Legal Separation Attorney Can Help Me
A knowledgeable New Mexico legal separation attorney will start by reviewing your situation and explaining your legal options. This will help you decide if a trial separation, permanent legal separation, or divorce is right for you.
Then, your attorney can explain how best to go about obtaining the outcome you desire. In the case of a permanent legal separation, that means exploring whether mediation, collaborative law, or litigation is the right path. If a settlement is possible, a skilled attorney will draft a comprehensive separation agreement. This will not only address all marital issues but will be written in a way that complies with New Mexico’s domestic laws. Your attorney will also explain what the agreement means and answer any questions you have.
Contact a New Mexico Legal Separation Attorney Today
Legal separation is not for everyone. Before deciding whether it’s right for you and your marriage, speak with a knowledgeable New Mexico family law attorney. Matteucci Family Law will discuss all options with you and work towards whichever one fits your particular circumstances. Contact Bob Matteucci today to schedule your consultation.
Matteucci Family Law Firm helps families with legal separation matters all across New Mexico including Albuquerque, Santa Fe, Los Lunas, and Rio Rancho.