What is Legal Separation?
It can be confusing for people to understand the difference between legal separation and divorce. Legal separation means that you are separating from your spouse but are not yet divorced. All the issues that can arise in a divorce complicate a legal separation as well.
The difference between a legal separation and a divorce is that in a legal separation there is no final order of divorce. Even though the parties are separated, they are not free to remarry until a final order of divorce is entered by the Court. The Court will enter temporary orders which usually mirror the final orders of child support, possession, and, if appropriate, the temporary division of the parties’ income and/or assets. Child-related issues – including child support and child custody and access – arise in both legal separation and divorce. Legal separation doesn’t end the marriage , but it allows the parties to live apart and establish a new way of life.
Why legal separation? There are many reasons. There may be financial or religious reasons. In a legal separation, the Court will set temporary orders for property division, debt division, spousal support, child support, health care issues, and make possession and support guidelines. It is possible to have a "trial legal separation" prior to a full-blown legal separation. This would involve the couple living apart as if they were legally separated, collecting all economic and other information and establishing temporary orders in the same areas as noted above but for a limited time and limited purposes, so that they can return to the marriage if that is what they decide to do.
When the trial separation ends, the couple may reconcile and resume living together; their property and debts are not affected. However, by the end of the trial period, when the couple has decided to separate, they may proceed with the legal separation process outlined above.
Factors that Influence the Cost of a Legal Separation
Many people consider the costs of initiating a legal separation for themselves or a loved one. Some wonder if they can afford the process, while others wish to estimate the separation and divorce fees themselves rather than have to rely on their lawyer for the figures. The truth is, there is no universal cost for legal separation; every situation is unique. There are, however, several factors that drive the costs of a legal separation.
Attorney fees represent a huge portion of the cost of getting legally separated. The price of hiring a legal professional can depend on whether you retain the services of an attorney or a paralegal, as well as the education and experience held by your chosen lawyer. You can still obtain the counsel of a licensed professional with a lower education, but your fees might not be equivalent to those charged by a doctoral-level professional. Paralegals are less expensive to hire, but the law does not permit them to provide legal advice.
The geographic location of your home also influences the expenses of a legal separation. Living in the city with the highest cost of living might drive the costs of your separation through the roof. If you move to a small town with a lower cost of living, you might spend much less on the process.
The complexity of any existing personal property or assets also directly affects the amount the process will cost you. Joint ownership of stocks, bonds, mutual funds and real estate usually adds a substantial amount to the amount of time and research your lawyer must conduct. If you and your spouse also hold a family-owned business or have multiple income properties, you will pay additional fees to separate not only your assets, but also your business relationship. When domestic violence is a factor, you might need to pay for additional security measures to protect yourself from potential danger.
If the opposing spouse has the ability to pay regardless of his or her personal situation, they might choose to go on the offense during the proceeding. You might find yourself spending thousands of dollars to obtain a very low married income support order, plus the attorney’s fees related to filing and lifting a stay. When the payee attempts to wear you down with continued litigation, your expenses will likely increase significantly.
Average Legal Fees and Other Costs Associated with a Legal Separation
When it comes to the cost of a separation, there are a number of expenses that can pop up throughout the process. Just as is the case with a divorce, there is always the cost of hiring an attorney to help navigate the process. Much like other legal professionals, a family law attorney will charge you for their services during the separation process. This presents a risk for many, as it can be difficult to find the necessary funds to file for legal separation. The median individual net worth for those filing annual tax returns in 2019 was $20,000 to $40,000, according to a report by the Pew Research Center. For many, the costs involved with separating from their spouse means they will have almost no net worth afterward. Though the initial filing fees are relatively low when compared to other legal matters, this low sticker price can be deceptive. As the process continues, there will likely be numerous other costs that the spouses share or spend as individuals during the separation process.
When you and your spouse file separation papers, there are a filing fee that will need to be submitted to your local court. Although it is important to contact your specific court to determine the exact fee in your case, filing fees typically cost a minimum of $120. Clerk fees, such as certified copies and other requests, can also add to the cost of your filing.
The fees associated with consulting an attorney can be steep. Though you will only consult your attorney when absolutely necessary, hourly rates and retainer fees can be a deterrent for many. Fees can vary greatly depending on the attorney. It is best to consult a number of family law attorneys to determine the ones that will best fit your needs.
When a couple files for separation, there will inevitably be legal costs that arise through the process. Child and spousal support hearings, investigations, appraisals, depositions and mediation are among the number of fees that can arise during the separation process. These costs are ongoing and should be considered when weighing the potential for separation.
Relatively Low Cost Alternatives to Legal Separation
It is in your best interest to have competent representation regardless of which approach you decide to take. If you want to move forward with the traditional approach, you need to be clear with your lawyer that you expect a cost estimate and a case strategy before you sign any retainer agreement. Many people start their divorce without an attorney. This is unwise. You can reach a settlement agreement without an attorney, but it will be time consuming and requires you to have access to relevant financial information. Litigation without good legal advice can mean being taken advantage of by a spouse with a more predator approach or if your spouse refuses to negotiate fairly you may end up in court when it is not necessary. Structured Dispute Resolution or SDM, is a series of processes and services designed to help resolve conflicts. These include mediation, collaborative law, co-mediation, shared neutral services (which includes mediation and/or coaching), as well as family law negotiations. An increasing number of professionals use this approach for clients willing to commit to a team approach that focuses on issues and problem solving. The role of the lawyer is supportive and less prescriptive than in the traditional model. Under SDM, the parties have more input into their settlement, and their lawyers play peacekeeping roles. This approach generally costs less than litigation because decisions are made at the table, instead of in court where lawyers fight over the same issue or issues. The new arbitration model for divorce may be a good alternative for some. Unlike litigation, the decorum is less formal and there are usually only two parties in the room with one neutral decision maker. If all issues are resolved, the fee will be lower both for you and the system of courts. This type of alternative is not available in every county in the US because there need to be courts willing to pilot this approach. Divorce cases can be lengthy and costly if there is high conflict. There is no benefit to arguing over each detail. So, if you have children, realize that the name calling and arguing could harm your case; emotionally and financially. Among the many benefits of finishing the legal separation process quickly, the loss of potential attorney fees is significant.
Helping You Prepare for the Financial Cost of Separation
When going through a legal separation, it’s important to understand how to financially prepare for this step and how to budget while implementing a legal separation in Canada. Going through a legal separation requires financial preparation due to having to account for shared or individual debts as well as any upcoming costs incurred by both parties. It can also be necessary to have the mortgage refinanced or get a totally new mortgage due to the parties splitting apart. One of the biggest factors that is often overlooked while separating would be budgeting and financially planning for both parties. It can be difficult to financially prepare for the separation due to costs associated with any court proceedings that can take place , which does require a lot of paperwork and time spent working with your lawyer. While having to budget correctly is required during this time and make it affordable to separate, there are often a few hidden costs that catch people by surprise. It’s important to start budgeting for these costs ahead of time to ensure that you’re ready for this occasion. Some other ways to financially prepare for a separation: Being able to separate from your spouse with a legal separation in Canada is a big deal. It requires a lot of money to ensure that you’re ready for the separation and how you’re going to cover these costs. Usually people will turn to their financial institution to help them cover for any major separated expenses, however, budgeting and not spending too much is the most important thing.
How Separation Effects Your Assets and Debts
The process of legally separating from your spouse does have an impact on the division of the assets you have acquired together as a result of your marriage; and equally the debts you have accrued as a couple. At the time of separation, couples are endeavored to divide their property and liabilities in a way that is equitable to both parties. During the course of a legal separation, it is important to keep in mind that you do not exchange anything of value from the date of separation. If assets or credit exists in both of your names, it is vital that you consult with a Vancouver separation lawyer to seek proper legal advice. You may be required sometimes to compensate your spouse for gifts or enhancements acquired during the marriage. It is also crucial that you review all your bank accounts and credit cards jointly held in your name as these debts will be considered part of marital debts.
The Long-term Financial Implications of Separation
To say that a legal separation can affect you financially would be a massive understatement. The most common long-term financial consequences of legal separation include spousal support, tax considerations, and whether you stay on your spouse’s insurance coverage.
Spousal Support
If you or your spouse will be ordered to pay spousal support, the guidelines for determining how much, and how long it will last are basically the same as in a divorce. The purpose of spousal support is to allow a lower-earning spouse to continue enjoying the same standard of living after the split that he or she was used to during the marriage. Typically, this type of support lasts only about half as long as the length of the marriage, so a couple married for ten years might have a similar support amount for five years. The length and amount, however, are negotiable and will vary in every case.
Tax Considerations
In terms of taxes, one more thing the courts will consider in deciding spousal support is the ability of the paying spouse to claim certain deductions, which could adversely impact the recipient spouse. For example, if a husband for health reasons is required to take a sum of money from his pension account to purchase insurance with a welcome cash bonus he receives from work and the monthly pension payment reduces a deductible against taxable income, the contribution may be used in determining a spouse support award for the wife. Such consequence may be mitigated if the wife foregoes spousal support.
Insurance Coverage
Lastly, legal separation affects health insurance; in many circumstances, you will be able to remain on your spouse’s insurance coverage and simply pay a higher premium because of your status as a not-yet-divorced person. You will need to inquire whether your employer will permit you to stay on your spouse’s insurance plan.
Contemplating Separation versus Divorce
When you’re already grappling with untangling your life from your spouse you may find differing opinions on what steps you should take to separate your lives from your spouse. It’s unlikely that your spouse will be an impartial judge or that your family and friends will help you make the right decision.
Many couples consider legal separation an alternative to divorce, but legal separation can be a less expensive process for some couples. If you are considering a legal separation, you should consult an experienced Texas family law attorney to evaluate whether a legal separation is a viable option for you and your spouse from a cost perspective.
Like a divorce, the financial costs of a legal separation can vary greatly depending on how you and your spouse handle the process. The more you and your spouse can agree on the terms of the separation , the less costly the proceeding will be for both of you. If you and your spouse battle over every detail, the legal separation can cost more than a divorce.
A divorce finalizes the legal end of your marriage and allows you to remarry or enter into a new domestic partnership. In contrast, a legal separation simply allows you and your spouse to live apart. Theoretically, you still have the means to reconcile and repair your marriage. You and your spouse remain liable for the tax and legal obligations of marriage.
In the end, the decision of whether to separate or get a divorce depends on your needs and wants. Can you see a reconciliation in your future? If the answer is yes, then you may want to pursue a legal separation. If the answer is no, then pursue a divorce and move on with your life.