What is the Difference Between a Legal Separation and a Divorce?
The major differences between a legal separation and a divorce
concern the division of property, the inability to remarry and in some
instances, the ability to maintain the health insurance, pension or benefit
coverage of your spouse.
- Division of Property: Unless there are
supplementary orders in effect, the legally separated husband and wife maintain
the same statutory rights of inheritance, property and administration in the
estate of the other, along with the obligations of the marriage contract except
those dealing with cohabitation. “…a decree of separation does not affect the
married status of the separated persons.” Viglione
v. Viglione, 22 Conn. Supp. 65, 68, 160 A.2d 501 (1960). Please note,
parties are considered single for Federal tax purposes.
- Inability to Remarry: Understandably, since
there is no dissolution of the marriage, parties are statutorily unable to
remarry. “A decree of legal separation
shall have the effect of a decree dissolving marriage except that neither party
shall be free to marry.” C.G.S. § 46b-67(b) (2011).
- Ability to Maintain Benefit(s): Depending
upon the insurance provider and/or benefit plan the legally separated spouse
may maintain health insurance and an interest in the spouse’s pension and/or
other benefit plan(s). Some parties may choose a legal separation for this
reason, especially if a spouse is unable to work and/or has severe health
problems. However, many insurance companies and other benefit plans view a
legal separation in the same manner as a divorce for benefit purposes and will
not provide the same coverage as if the parties were still married and cohabitating.
This is a determination made by the insurer and not by the parties or the
On What Grounds Can I Obtain a Legal Separation?
One can file a legal separation on the same grounds as one
would file a divorce. More specifically those causes listed under Conn. Gen.
Stat. § 46b-40(c).
“A decree of dissolution of
a marriage or a decree of legal separation shall be granted upon a finding that
one of the following causes has occurred:
(1) The marriage has broken
(2) the parties have lived apart by reason of incompatibility for a continuous period of at least the
eighteen months immediately prior to the service of the complaint and that
there is no reasonable prospect that they will be reconciled;
(4) fraudulent contract;
(5) wilful desertion for one year with total neglect of duty;
(6) seven years’ absence, during all of which period the absent party has not been heard from;
(7) habitual intemperance;
(8) intolerable cruelty;
(9) sentence to imprisonment for life or the commission of any infamous crime involving a violation of
conjugal duty and punishable by imprisonment for a period in excess of one
(10) legal confinement in a hospital or hospitals or other similar institution or institutions, because of
mental illness, for at least an accumulated period totaling five years within
the period of six years next preceding the date of the complaint.”
Can I Convert My Legal Separation into a Dissolution of Marriage?
Yes. As long as there has not been a resumption of marital relations,
then at any time after the entry of the decree of legal separation, either
party may petition the court for a decree dissolving their marriage and the
court shall enter the decree in the presence of the party seeking the
dissolution. see Conn. Gen. Stat.
§ 46b-65. Please note when converting a legal separation agreement into
a Dissolution proceeding, the terms of dissolution must still be found to be
fair and equitable; “the trial court’s incorporation of the prior orders
entered in the decree of legal separation into the decree of dissolution of
marriage without a finding that the orders were ‘fair and equitable’ at the
time of the dissolution was improper.” Mignosa
v. Mignosa, 25 Conn. App. 210, 216, 594 A.2d 15 (1991).