It’s only natural that separating couples think about their options for the future. And in Colorado, they have two important options to consider: divorce and legal separation. But knowing that these options exist can also be the source of confusion—especially because legal separation and divorce work differently in Colorado than in other states.
For example, other states may require that a couple have a separation period before they can get a divorce.
In Colorado, that’s not the case. A couple can have a legal separation and then decide later to divorce, but that isn’t required. Instead, they can get divorced without having a legal separation. Or they can remain legally separated and never divorce.
And, of course, it’s possible that, before a divorce, one spouse moves out of the couple’s shared residence. But the fact that someone is simply living on their own does not constitute a “legal separation” in Colorado.
At first, that may seem to be clear as mud, but—once we go through the differences of a Colorado divorce and legal separation—the logic behind all that will become clear.
And once couples understand the differences between divorce and legal separation, they realize that this does give them an important option to consider.
The Result of a Legal Separation versus Divorce
Colorado law is a “no-fault” divorce state. Under state law, a spouse can file for divorce on the sole grounds that marriage is irrevocably broken and therefore must be dissolved. The divorcing spouse must file the divorce papers with the court and then serve them to the other spouse.
Once the divorce pleadings have been filed, the couple must come up with a plan to divide their financial holdings and property—either through an out-of-court agreement or during litigation. If they have children, they determine custody of the children with a parenting plan.
Then, once this process is complete and the court has approved the dissolution documents, the couple is no longer married. Legally and financially, they are completely independent of each other, and each is free to remarry.
In many ways, a legal separation operates in the same ways as a divorce: The court will supervise the division of the couple’s assets. If they have children, custody arrangements must be made in a parenting plan. Both the division and the parenting plans are then approved by the court and become court orders. A legal separation is a permanent decision. Legal separation can even include spousal support (also known as alimony), just as a divorce might.
At the end of the legal separation proceeding, the spouses live apart. They raise children separately (although by the parenting plan). They each own separate property. The spouses cannot claim the others’ assets as theirs, and they won’t be held legally responsible for the spouse’s debts or other actions.
But the couple is still legally married. They cannot remarry. And when the Internal Revenue Service asks if the filer is married, they must answer “Yes.”
Procedural Differences between Legal Separation and Divorce
Divorce and legal separation have very similar procedural requirements: Both require that a spouse file a petition with the court and then serve the petition on the other spouse. Both processes require the court to approve the asset division and the parenting plan. However, there are significant procedural differences.
The first is the most crucial: In Colorado, the decision to divorce can be entirely one-sided. The court can still grant a divorce, even if one spouse refuses to agree to it.
By contrast, both spouses must agree to a legal separation. One spouse may file the petition for a legal separation, but the other spouse refuses to accept it, then the court will order the petition to be changed to a divorce proceeding.
And, at any time, either spouse can switch the filing into a divorce petition—even after the legal separation has been granted.
Why Someone Might Choose Legal Separation Over Divorce
Because a couple continues to be married, legal separation is an option for those who, for religious or cultural reasons, cannot get a divorce. Some spouses who are parents find it an attractive option when they may want to separate but want to protect their children from having to deal with either parent’s remarriage.
There are also financial reasons: For example, when legally separated, they both may be able to remain on a spouse’s employer-provided health care insurance plan.
Whether someone chooses a legal separation or divorce, both have life-changing consequences. That’s why, before making the decision, call an experienced attorney and have all your questions answered.
Stephen Vertucci is a family law and divorce attorney in Fort Collins, Colorado. The firm has helped many clients navigate the legal complexities of divorce, child custody, spousal support, property division, parental visitation, and child relocation disputes.
