Even if a marriage ultimately ends in divorce, there may be advantages to long term separation. Long term separation also comes with disadvantages. Parties must understand both when considering long term separation and other options.
Insurance and Health Care Coverage
Usually, if the parties remain married, both parties will keep insurance and health care coverage they had as a married couple. This can be a tremendous benefit. Depending on the status of the law, one party may have difficulty obtaining insurance and health care coverage on his or her own. If the parties agree to a separation or divorce agreement, the agreement should address insurance and health care coverage.
Pension and Social Security Benefits
Depending on the length of a marriage, there may be an advantage to one or both parties to remaining married for a given time to maximize pension and / or social security benefits. Pensions and social security payments often come with increased benefits over time.
Income Tax Benefits
Parties may be able to take advantage of certain income tax benefits by remaining married. This can include, but is not limited to, possible increases in deductions. Delaying a final divorce can maximize any available tax benefits.
Avoiding Sale of the Family Home
Selling the family home and ending a mortgage may not be in the best financial interests of the parties. The real estate market, for example, may also be down – or not optimal for sellers. The parties may also find it advantageous to continue living in the family home, avoiding a financial loss involving the marital home. The family home is often the parties biggest asset. Avoiding a sale may be worth delaying a divorce to maximize its value.
A legal separation can provide the evidence needed in jurisdictions, such as Maryland, where couples are legally required to be apart before they are allowed to file for divorce. If the parties have not entered into a legal separation, a party opposed to the divorce can argue that sexual relations or a short period of cohabitation in the same residence during the required time period nullifies the required separation period. If the parties enter into a legal separation agreement, this limits these arguments from being made effectively in many circumstances.
A separation agreement may establish the terms of a future divorce agreement. Legal separation agreements can cover whatever issues the parties find important to them. This usually includes the residence of the parties and the division of property during the separation. Separation agreements may also include child custody arrangements, the division of debts, and alimony payments. Sometimes, a separation agreement is a precursor to a divorce. However, that is not always the case. If the parties reconcile, the separation agreement can be voided. If the parties divorce, a divorce agreement can finish what a separation agreement began.
Other, Non-Financial Reasons for Long-Term Separation
Often, there are social considerations for remaining married. Sometimes, parties prefer to live their lives as a married couple, even though they live separately. Some couples may think separating is easier or less confusing for their children. Sometimes, parties simply do not get around to a formal divorce. They may see no benefit of actually filing for a divorce. This is particularly true if they do not plan on remarrying.
Religion may also be a factor in deciding on a legal separation. In some religions, there are serious, negative consequences for someone who seeks a divorce. For parties religiously opposed to divorce, legal separation allows them to live an independent life while maintaining religious acceptance. It also allows for the chance of reuniting with their spouse some time in the future.
Potential Financial Issues with Long-Term Separation
Married couples share most debt under the law. As a result, the financially conservative party could be responsible for half of the spender spouse’s credit card debt. This is true even long after the parties have separated. Further, if the spender spouse falls behind on his or her payments, both parties’ credit ratings could be affected.
During a long separation, each parties’ assets could increase or dwindle significantly. If the parties divorce eventually, this could result in the better financially positioned party paying significantly more alimony than if the parties had divorced early on. This is true even if the spouse receiving alimony did not contribute emotionally or financially during the separation.
Difficulties between heirs, and estate disputes can arise when the parties never officially divorce. Sometimes, heirs may presume the parties divorced, when in fact, the parties remain legally married. Without a legal document clearly delineating the intentions of each party regarding inheritance, the law may dictate property division in a manner neither party intended. It is important that legally separated parties do all necessary estate planning to ensure assets are inherited by the appropriate heirs upon their death.
After a long separation, it may be difficult to locate the other party if he or she has moved. Legally separated parties sometimes behave as though they are already divorced, living their own separate lives. Ending that arrangement can prove to be difficult if the parties have distanced themselves to the extent they are no longer in contact. Consequently, it helps if the parties maintain some minimal level of contact. This is easier in cases where the parties have children in common.
The decisions parties make about their marriage is very personal. This is true whether they decide to separate, divorce, or reconcile. It is important to remember sometimes a separation that was once an amicable separation can quickly turn into a very unpleasant situation. Consequently, the parties should remember this when considering how to proceed.
If you are considering a change in your marital status, contact the lawyers at Fait & DiLima. We can review your specific facts and circumstances and discuss various options for you and your family.