A legal separation offers couples an alternative to divorce in Alaska. Under Alaska law, a superior court judge can enter a decree of legal separation because there is an incompatibility of temperament between the parties, and the continuation of the marriage will preserve or protect legal, social, religious or financial interests of one or both of the parties. A decree of legal separation allows the couple to live apart while continuing their legal marriage.
How Does a Legal Separation Compare to a Divorce?
In short, a divorce resolves all issues arising out of the parties’ marriage. In contrast, a decree of legal separation can, but is not required to, resolve all issues arising out of the parties’ marriage.
When parties divorce, three things happen:
- The parties’ property and debts are equitably divided between them,
- If the parties have children, the court will enter a final physical and legal custody order as well as a child support order, and
- A superior court judge will enter a final decree of divorce terminating the marriage based on an incompatibility of temperament.
Unlike a divorce, a legal separation decree does not change the marital status of the parties. They are still legally married to each other.
Also, the scope of a legal separation is flexible. The court can enter a final property division order, equitably dividing the parties’ property and debts. Or, the court can leave the division of marital property and debts for future resolution.
If the court does not enter a final property division order, it has to define the parties’ rights and obligations to the undivided property and debts. For example, if the parties own a house with a mortgage, the court would have to decide who is going to live in the house and who is going to pay the mortgage.
Also, the court must define the parties’ rights and obligations with respect to property and debts, which the parties acquire during the legal separation. A legal separation decree can also cover custody, visitation and child support if there are minor children. It can also award spousal support to one of the parties.
Why Might a Legal Separation Be Right for You?
Legal separation could be an effective planning tool for two people who do not want to continue their marital relationship but have financial, religious, social, or legal interests, which would be damaged if they got divorced.
Here are some of the reasons why a legal separation may be a better option than a divorce:
- Health insurance. A couple may seek a legal separation to protect health insurance benefits. This can be important for a spouse who does not have health insurance, does not work, or has health problems. Some health insurance policies cover spouses who are legally separated, while others do not, in which case a legal separation offers no advantage over divorce.
- Social security benefits. If a couple has been married for more than ten years, either of the may be eligible to receive social security benefits based on the based on the other spouse’s social security record. So it makes sense if you have been married for less than ten years to think about a legal separation until the ten years has passed.
- Military retirement benefits. If the parties have been married for ten years, the military spouse has ten credible years of service, and the military spouse’s pension is divided; Defense Finance and Accounting Services (DFAS) will send pension payments directly to the former spouse. If the parties do not meet these requirements, then DFAS will not get involved in administering the pension division and the military member must pay the former spouse directly. However, if the couple maintains a marital status for at least ten years, the need for direct payment from one spouse to another is eliminated. Because of this, some couples opt for legal separation instead of a military divorce.
- Tax planning. A couple may elect a legal separation because of the tax consequences of a divorce. A couple who files a joint tax return may have an overall smaller federal tax liability than each of them would have if they were divorced and filed their tax returns as single persons.
- Religion. The couple may remain married for religious or cultural reasons. This is often the case where a divorce is a breach of cultural or religious values or practices.
- One last chance. Some couples may prefer a legal separation over divorce because they cannot live together but still hope to repair their marriage. Remarriage after a divorce may be less likely than reconciling after a legal separation.
Why A Legal Separation May Not Be Right for You
There are situations where divorce is better than a legal separation:
- Financial Reasons. Many couples get divorced because of financial issues between them. Separating assets without a divorce may not be practical, particularly if you are concerned that your spouse is putting those assets at risk. On the other hand, since an Alaska court can enter a final property division in a legal separation case, the risk to marital assets may be reduced.
- Neither Party Can Remarry. A legally separated person cannot get remarried. So emotionally, a legal separation could be an obstacle to getting on with your life, which may be important to you after the end of your marital relationship.
- Your Legal Separation May Still End in a Divorce. If your spouse wants a divorce, he or she can file a divorce action at any time before the entry of the final decree of legal separation. Under Alaska law, the filing of a petition for dissolution would not prevent your spouse from filing a divorce case. If your spouse filed a divorce case, then the legal separation case and the divorce case would be “consolidated” into one case. If this happens, getting a legal separation is less likely.
A Tough Decision
Deciding between getting a divorce and a legal separation is a difficult decision. It’s important to weigh the pros and cons of each, and to determine what makes the most sense based on your personal situation. Be sure to get the advice of a professional before making any hasty decisions.
Posted in: Divorce