Legal Separation vs. Divorce in Tennessee
In my experience as a family lawyer, I’ve found that many people think legal separation is the same as divorce, only faster and cheaper. In Tennessee, that couldn’t be further from the truth.
Hi. I’m Miles Mason. I’m a divorce attorney and the founder of the Miles Mason Family Law Group. We represent clients in the greater Memphis, Collierville, and Germantown, Tennessee areas.
Today I will explain how legal separation is different from divorce in Tennessee law. You may have heard of “divorce from bed and board.” That’s simply another name for legal separation. It’s not some special type of divorce. As you watch this video, you and your spouse may already be separated, wondering what to do next. File for divorce? Or file for legal separation? When you consult an experienced lawyer, you’ll learn that the same court proceedings are common to both, but divorce and legal separation are not the same thing.
Here’s the basic distinction between Legal Separation and Divorce.
After a divorce the parties are free to marry other people, the bonds of matrimony are dissolved forever. This is sometimes called “absolute divorce.” By contrast, the parties are still married after their legal separation. Otherwise, the court process of legal separation in Tennessee parallels divorce.
This is the question you need to ask.
“What can legal separation do that divorce can’t?” The answer is “Very little.” The grounds alleged for legal separation are the same as divorce. Irreconcilable differences, adultery, abandonment, inappropriate marital conduct, habitual drunkenness, and so on. With divorce, the court will equitably divide, distribute, or assign all marital property between you and your spouse. With legal separation, the court has discretion to divide the property. Or not to. Discretion means the judge can enter the order now or leave the property issue for later. But, most divorcing parties will both want to divide the marital property depending on the circumstances. When property is equitably divided, anything acquired after the decree of legal separation is separate property, separate property being that which only belongs to one spouse.
But what if the judge decides to reserve the division of property for later?
Eventually that time will arrive. And the spouses are back in court to resolve the property division issue. Clearly, there is no time savings or cost savings in that process.
These are the 3 main points you should take away from this discussion. Number One.
The idea that legal separation will cost less than divorce is a myth. Legal separation is not a cheap divorce. It’s not an easy divorce. It’s not a quickie divorce. The reason why legal separation won’t save you money is that it involves the same court process – the same proceedings – as divorce. There is property to divide. There is alimony to award. There are child custody decisions to make. There is child support to be ordered. Because legal separation involves the very same proceedings as divorce, it can be every bit as expensive.
When deciding whether to file for legal separation or divorce, legal separation may be the sensible choice, but only in very rare circumstances. If you want to be divorced, but need to continue health insurance, then legal separation may be the best way to proceed. That’s because divorce is a terminating event for health insurance coverage, whereas legal separation is not a terminating event. If health insurance coverage is through your employer, your spouse will still be covered after legal separation. By contrast, your insurance won’t cover your former spouse after the divorce. That said, your ex may be eligible for COBRA coverage. But that is not the same as being on your policy as a spouse. Similarly, if you have some other estate planning reason, then legal separation may be a sensible choice for you. For instance, it may be necessary to stay married in order to continue as a beneficiary under a trust. Legal separation is not a sensible choice if you plan to remarry. You must have a divorce decree to marry someone else. Legal separation is not a sensible choice if you want to be free of your spouse’s debts or legal problems such as a bankruptcy or personal injury lawsuit, for example.
Let’s say you and your spouse do obtain a decree of legal separation. After 2 years pass, either of you may “convert” the legal separation into divorce without the other’s consent. You already incurred the cost of legal separation. Two years later, you could be back in court for a decree of divorce. Marital property that was not divided in the legal separation, must be divided in the divorce. When divorce follows legal separation, and it often does, the total cost may exceed what the divorce alone would have cost.
There is one last point I want to make.
When spouses don’t agree on legal separation and when one spouse wants legal separation, the other wants a divorce. It’s the divorce case that will go forward.
I’m Miles Mason from the Miles Mason Family Law Group. Thanks for joining me.