Couple sitting with divorce attorney

Legal Separation vs. Divorce

By Bob Matteucci

Some states do not have a process for spouses to file for legal separation. These states do not recognize a legal separation. New Mexico recognizes legal separation. To ensure that you protect your best interests and the best interests of your children, always consult with a New Mexico family law attorney before entering a legal separation. 

What is the Difference Between a Legal Separation and a Divorce?

A legal separation is a process of separating yourself from your spouse without formally ending your marriage. You separate your financial lives and personal lives, but you remain legally married. You cannot remarry regardless of how long you remain separated. To remarry, you must obtain a dissolution of marriage (divorce) from the court. 

You do not need the court’s permission to leave your spouse, i.e. move out of the marital residence. Further, the parties can agree to live separately without going to court. However, you are still married and all laws that apply to married couples continue to apply to you and your spouse.

A legal separation requires a court order. All matters that would be settled during a divorce are addressed during the legal separation. The only difference is that you and your spouse remain legally married. 

During the process, you and your spouse enter a legal separation agreement that addresses issues including:

As with all issues related to children, if the parents cannot decide what is in the best interest of the child, the court will determine what is in the child’s best interest.

In many cases, spouses negotiate legal separations with each party retaining an attorney. Some couples might need a family law attorney acting as a neutral mediator to help them reach an agreement that is fair for both parties. However, if the parties cannot agree on the terms of the legal separation, there may be no other choice but for the parties to pursue a traditional divorce.  

Reasons Why a Couple Might Seek a Legal Separation

If a couple does not wish to be together, why don’t they simply get a divorce? There are some reasons why a couple might choose a legal separation instead of a divorce. Reasons for a legal separation instead of a divorce might include:

  • The spouses wish to retain legal rights related to health insurance, retirement, and Social Security
  • Some spouses may remain married for religious reasons
  • The couple might not be sure they want to divorce and wish to have time to consider the matter and possibly seek marital counseling
  • To avoid being legally responsible for a partner’s debts or obligations 
  • Keep future purchases and other property separate 
  • For income tax benefits or estate tax benefits

Seeking a legal separation instead of a divorce is a personal decision. However, a legal separation may not be in a couple’s best interest if the goal is a divorce. 

Contact Our New Mexico Family Law Attorney for More Information 

Family law matters can be complicated. It can be difficult to make the best decision for yourself and your children when your emotions are in control. Our New Mexico family law attorney can help you identify important issues and formulate a plan that gives you the best chance to obtain a favorable outcome. Contact Bob Matteucci today.

About the Author
Bob Matteucci is a board certified family law specialist, with a statewide practice in the area of divorce and family law.