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- How is a legal separation different from a dissolution of marriage?
- Does a legal separation protect me from the debts of my spouse?
- Do I need to go the court to separate from my spouse?
- Can I draft a separation agreement without a lawyer?
- Does a legal separation prevent a decree of dissolution (divorce) in the future?
- Is legal separation required before a divorce decree can be granted?
- Can I still get support if we separate?
- Does health insurance coverage continue after a separation?
- If a spouse dies after a separation is the surviving spouse still qualified to receive the legal benefits of inheritance and social security?
- If my former spouse and I have been apart for several years without filing any kind of papers, are we still married?
- Does a legal separation have any benefits?
- How is a legal separation different from a dissolution of marriage?
The legal process to obtain a dissolution of a marriage and legal separation are nearly the same. The final decree for both will be a judgment that divides assets and debts, determines financial obligations between the spouses, and establishes parenting rights and responsibilities.
A legal separation, however, is not a dissolution of marriage (divorce). If you are legally separated, you cannot marry anyone else. If you are legally separated, and you reconcile with your spouse, you can dismiss the legal separation and thus restore the marriage. Also, in some circumstances, one spouse may be eligible for continuing health coverage from the other spouse's employer, even after a legal separation is granted. The same is not true with a divorce.
- Does a separation protect me from the debts of my spouse?
When spouses separate they may still bear responsibility for the
debts previously and presently incurred by a spouse. In limited circumstance, a separation may limit a spouses’ exposure to the debts of the other spouse.
- Do I need to go the court to separate from my spouse?
In order to separate, you just need to live apart due to marital difficulties. No paperwork is required. When you are living apart under such circumstances, you are then considered separated.
A court hearing may not be required to separate from your spouse. Obtaining a decree of separation, however, commonly establishes separate responsibilities and can ensure that liabilities for each other are properly divided.
- Can I draft a separation agreement without a lawyer?
Yes. However, people who draft their own agreements, without an attorney, can make costly mistakes. A separation agreement is a binding contract and may last forever so it must be reviewed with great caution.
At flatheadlaw.com we suggest that is always best that you seek the advice and counsel of a licensed attorney to review your rights and obligations, and discuss the separation agreement before it is signed.
- Does a legal separation prevent a decree of dissolution (divorce) in the future?
In general, a legal separation, whether by judicial decree or agreement of the parties, will not prevent a dissolution of marriage in the future.
In Montana, a legal separation of more than 180 days is the definition of an irretrievably broken marriage. In such cases, and upon the request of one of the separated parties, the court may be required to enter a decree of dissolution of marriage.
- Is legal separation required before a divorce decree can be granted?
No. In some states, a legal separation is the first requirement in the process toward a dissolution of marriage. However, in Montana, parties can petition directly for either a legal separation or a dissolution of marriage.
- Can I still get support if we separate?
The support of a spouse and the support of children are requirements and responsibilities of married persons, whether they reside together or separately. Exceptions may exist, for example, if a spouse has abandoned a marriage the duty for support may terminate.
- Does health insurance coverage continue after a separation?
Yes, as long as spouses remain married, health insurance in place prior to a separation should continue. If a spouse was protected by a policy of insurance prior to a separation, that health insurance coverage should continue during a period of separation.
In Montana, it may well be a violation of law if a spouse cancels the coverage for a spouse during a period of separation absent a court order.
- If a spouse dies after a separation is the surviving spouse still qualified to receive the legal benefits of inheritance and social security?
Generally, yes. Legally separated is still legally married. Although pre marital or separation agreements may provide exceptions. Of course, if the death of a spouse results from the criminal conduct the other the benefits would likely end.
- If my former spouse and I have been apart for several years without filing any kind of papers, are we still married?
If you have not filed any papers or signed any agreements, you are considered legally married, although you are physically separated.
- Does a legal separation have any benefits?
A legal separation is not a dissolution of marriage. Thus, if you or your spouse are uncertain whether you can resolve your disputes, but feel that some time is required to think things through, filing for legal separation is a good option. If a couple reconcile after a legal separation they would not need to remarry.
In many cases, matters of faith and religious belief simply do not agree with the legal concept of divorce. In such instances, a legal separation may be a tolerable option.
There may also be some financial reasons to consider a legal separation. If a non‑employee spouse has a pre‑existing condition or might have difficulty getting medical insurance, some plans allow you to keep a separated spouse on the employee spouse’s health insurance.
There may also be benefits in obtaining a legal separation but remaining married, for Social Security purposes, and for the advantage of obtaining retirement or military benefits.
At flatheadlaw.com, we suggest that you seek legal advice and counsel of a licensed attorney if you wish to seek, or are considering, a dissolution of your marriage.
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