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How does a legal separation affect child custody?

In Colorado, a couple has the option of filing for divorce or for legal separation with children.  Spouses typically are no longer financially responsible for each other after a legal separation, save for any spousal support provisions in the decree of legal separation. Yet legally separated spouses cannot remarry until they actually divorce. Does that seem inefficient?

Before answering in the affirmative, readers should know about the unique benefits of a legal separation. Since legally separated spouses are still married, despite living apart, they might be able to retain insurance or retirement benefits, as well as inheritance rights. Of course, the couple might agree to terminate these rights in their separation agreement. Otherwise, the separated spouse might remain a beneficiary or fiduciary in the other spouse’s will, possibly even retaining joint ownership of property.

When children are involved, the inheritance rights that are preserved in legal separation might present a significant advantage. At the same time, a separation agreement can address many of the same issues as a divorce agreement.

At a minimum, a separation can buy a couple more time than a divorce. Whereas the court in a divorce proceeding will need to come to a final resolution, a legally separated couple does not need to have a permanent resolution. Indeed, the separation can be revoked, should the couple reconcile. Alternatively, a separated couple might also decide to file for divorce after they have had time to work through issues of support and property division.

Our firm offers a broad array of family law and divorce services. We can help you decide whether legal separation might be right for you.

Source: Colorado Judicial Branch, “Divorce or Legal Separation - WITH Children Forms

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