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Legal Separation vs. Divorce

October 11, 2023 Divorce, Parenting & Kids, Pre Divorce

What is Legal Separation?

A Legal Separation is different than simply living apart. Physically separating is not the same as legally separating. If you physically separate without taking any further legal action, you remain legally married—and will continue to enjoy (or suffer) all the rights and responsibilities that come with it. 

Legal Separation creates a distinct legal status. When you are “legally separated” you are no longer married. However, you are not divorced. 

Reasons for Legal Separation

Legal separations are rare. They used to be invoked because it would keep the marriage intact for purposes of continuing a separated spouse’s health insurance through the other spouse. However, insurance companies are wise to this and now commonly refuse to continue benefits for a legally separated spouse.

Aside from the rare continuation of health insurance benefits, the other most common reason parties choose a legal separation instead of divorce is due to personal or religious reasons. If parties belong to a religion that prohibits divorce, or if they are attempting to honor a personal tenet to never get divorced, parties will sometimes choose “legal separation” as a work-around because it has the legal effect of a divorce, but the semantic distinction of not actually being a “divorce.”

Legal Separation vs Divorce

There is virtually no practical difference between a legal separation and a divorce in Wisconsin. Both dissolve a marriage and require the family law court (or the parties) to divide their property, their incomes, and their time with their children in the same manner and with the same finality as if they were formally divorcing. The same legal standards apply to the court’s evaluation of child custody, placement, child support, property division, and spousal support whether in the context of a legal separation or divorce.

However, there are a few minor differences between Legal Separation and Divorce in Wisconsin:

A legal separation is only guaranteed for one year. One year after receiving a final judgment of legal separation, either party can move the court to convert the matter to a divorce without going through the formal divorce process.

Parties to a legal separation can reconcile at any time and revoke their Judgment of Separation; parties to a divorce only have 6 months after the divorce is final to reconcile and revoke their Judgment of Divorce.

After a divorce, parties can remarry someone else after a six-month waiting period. Parties to a legal separation cannot get remarried.

Parties can file a legal separation if at least one party has lived in a county for 30 days; to file a divorce, at least one party must have lived in the state of Wisconsin for 6 months. 

The Legal Separation Process in Wisconsin

The forms, instructions, procedural information, and waiting period for obtaining a legal separation are the same as those for obtaining a divorce. 

  1. Filing for Legal Separation: Filing a Legal Separation is identical to filing for divorce—except that the court will assign the case a different case code to distinguish it internally as an action for Legal Separation instead of an action for Divorce. 
  2. Serving the Papers: Once a Legal Separation is filed, your spouse must either agree to accept the papers for service or you must have him or her served via a Sheriff’s deputy or private process server.
  3. Negotiate your terms: Once your spouse is officially “served” with the initial pleadings, you must wait 120 days to finalize the separation. During this time period, you will negotiate the terms of your separation—such as provisions for custody and placement of your children, child support or spousal support, and property division.
  4. Draft a written settlement agreement: After you and your spouse have negotiated a final settlement of all terms, you must prepare a proposed Marital Settlement Agreement. You will then submit this document to the court for approval.
  5. Attend your final separation hearing: After you submit your final Marital Settlement Agreement for approval, the court will set a final court date for you to appear and finalize your Legal Separation. If either party asks at this hearing to convert the Legal Separation to a divorce, the court will usually grant that request.
  6. Receive your Judgment of Legal Separation: After your final hearing, you will receive paperwork called the “Findings of Fact, Conclusions of Law, and Judgment of Legal Separation.” These are your “official” Legal Separation papers that you will need to prove your new legal status and to implement the legal agreements approved by the court.

Cost of Legal Separation

Because the Legal Separation process is identical to the Divorce process, the costs are the same. Each county charges their own rates for filing a Legal Separation, but the cost is approximately $200 in each county. If your spouse will not agree to accept the pleadings, you will have to pay a Sheriff or process server to deliver them. This can cost anywhere from fifty dollars to several hundred dollars depending on how uncooperative or evasive your spouse chooses to be.

Lawyers charge the same rates for Legal Separations as they charge for Divorces. They typically request a large, lump sum payment up front (often called a retainer or an advance fee) and then charge all work on an hourly basis at hourly rates that are based on the skill and experience level of the attorney, the difficulty of your case and the issues involved, and the county where your case is located. 

Other Legal Separation Questions: 

How long can you be legally separated?
Short answer: Indefinitely

Parties who legally separate can remain legally separated indefinitely. However, they are not eligible to remarry anyone else while they are legally separated. Also, after one year of legal separation, if one party wants to convert the separation to a divorce, he or she can do so by simply notifying the court.

Can I keep my health insurance if I get legally separated?
Short answer: It depends

This is entirely up to the health insurer so make sure to check with the policy provider to ensure you understand your rights under your policy. Some insurers allow separated spouses to continue their coverage. Other insurers will not continue coverage for a separated spouse. 

Does a Legal Separation protect me from my spouse’s bad debts or bad acts?
Short answer: Not necessarily

Wisconsin courts have held that certain responsibilities remain between separated spouses and that the marriage bond is not entirely dissolved. For example, your spouse’s creditors could still sue you (and try to garnish your wages) for your spouse’s unpaid debts. It is also possible that if your spouse commits a tort (personal injury) against a third party that they could try to sue you as well as your spouse.

For additional insights into whether a Legal Separation or Divorce is better for your situation, contact one of our attorneys for a consultation or call (414) 485-0191 to discuss your case.

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