Some couples who determine that their marriage can't be repaired never actually go through with the process of divorce. Many of these couples opt for a legal separation, which is available in most states. Some states require that couples be legally separated for a period before they can get divorced.
It's best to draw up a legal separation agreement even if you have no plans to divorce, but decide to continue living apart for more than a "trial separation." These agreements codify many of the same matters a divorce agreement does, such as asset and debt division, alimony and child support, custody and visitation.
Financial Reasons Not to Divorce
So what's the advantage of choosing a legal separation rather than divorce? Some people opt for legal separation rather than divorce for religious or cultural reasons or simply because they aren't ready to take that step. We've seen high-profile couples in the entertainment and political world split, but then not divorce for some time, if ever. If neither spouse wants to remarry, they feel the situation works best for them and for their children.
For many couples, however, the reasons are financial.
To continue health insurance coverage: This is a big one -- particularly with the Affordable Care Act appearing to be in serious danger. A divorced spouse generally can't continue to stay on a husband's or wife's employer-sponsored plan. However, it's important to make sure that the employer doesn't have the same rule about legally-separated spouses.
To maximize government benefits: In order to receive Social Security spousal benefits based on an ex-spouse's work record, the marriage must have lasted for at least a decade. If you're close to that point, delaying the divorce for a little while can have significant financial advantages for you in later years. If one or both of you is in the military, it's worthwhile to find out what benefits you'll lose if you legally separate rather than get a divorce.
Tax advantages: Filing joint tax returns is generally more beneficial than filing as an individual. However, some states consider legally-separated couples divorced for filing purposes, and the Internal Revenue Service usually follows the laws of the states. Therefore, before making your decision based on tax advantages and before filing your returns, check with a tax professional.
Protecting Yourself in a Legal Separation
If you and your spouse decide on a legal separation, whether as a precursor to divorce or instead of one, it's essential to draw up the legal documents necessary to protect your interests and to get experienced advice on handling your finances and taxes moving forward.
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