Legal Separation or Divorce – Which is better?

When clients contact me to mediate a legal separation, they are often unclear about the difference between legal separation and divorce.  In fact, they sometimes say, “we are already legally separated but we don’t agree about how to divide our 401(k) accounts,” or “we can’t agree who is going to pay Junior’s orthodontist bill.”  They are surprised to learn that living separately is different than legal separation, and that, in reality, legal separation is only one step away from divorce.

In Montana, legal separation means you go through the same steps as in a legal divorce, but the final document is a decree of legal separation, as opposed to a decree of dissolution of marriage.  After six months, either one of the former spouses can file with the court to get a divorce decree.

“Well, then,” say my clients, “why should we do one instead of the other if that is the only difference?” My question to them is “what do you want out of the final process?”  Most often, they say they are not yet sure about a divorce but they can’t continue living together as they have been.  So then, we calmly talk about all of the pieces that make up the legal separation process, separation of assets and debts, a plan for shared parenting, child support, spousal support, etc., and how they might work under the different scenarios.

The end result varies according to what they really want to do.  Some couples decide only to come to agreement about paying bills without a court process, others decide to divorce, and others go ahead and do a legal separation.  That is the beauty of family mediation – you get to decide what you want to do, and when you want to do it with a fuller understanding of the effect on your family and your finances.  That is how mediation supports self-determination that is fully informed.