When facing a challenging situation like divorce, it is often difficult to know where to start. A person’s whole life is about to change. Everything from family dynamics to daily routines will most likely be altered, and tough decisions will need to be made amongst the chaos. Where are the kids going to go? How am I going to afford all of this on my own? Who gets the house?
What do we do with the retirement accounts? Fortunately, some professionals can help sort out some of the tough decisions regarding specific issues mentioned above. However, it is helpful to understand some of the basic options and decisions that the individual will need to make before utilizing professional assistance.
In this article, I will be discussing some of the first fundamental decisions that need to be made when realizing it’s time for a divorce. Perhaps it is a situation that calls for a complete dissolution of the marriage. Maybe it’s better to endure the issues and keep working on the solutions to those issues.
And perhaps someone can’t stand their spouse of 30 years and would love nothing more than to get away from them but can’t because they can’t afford health insurance on their own. By knowing the available options, one can better navigate the specific issues and seek help tailored to their individual situation.
Option 1. Divorce
When it’s over, it’s over. It’s often better to cut ties cleanly than to drag out the effects of living in an unhappy marriage. Divorce is the severance of a legal marriage and the dividing up the marital assets and debts of the relationship. Divorce is also making decisions on how to co-parent any children of the marriage.
Divorce can often be a messy process to endure but in the end, there is hopefully an opportunity for a fresh start for the parties. The benefits of divorce include a clean cut of all legal ties and allowing the parties to go on to live their separate lives.
The downside can also be the finality of a divorce. Perhaps there are situations where the finality of a divorce becomes problematic in situations where it’s possible to save the marriage or in situations where the finality would mean a disastrous event such as loss of insurance coverage. Fortunately, there are other options to divorce.
Option 2. Do nothing.
The old saying that marriages are hard and require a lot of work, and couples should stick through the hard times at all costs has certainly been the message touted throughout history and delivered by many religions around the world. “Till death do us part,” is engrained in many wedding vows.
When contemplating the ending of a relationship doing nothing might be the best scenario. Someone facing the ending of a relationship and choosing to hold true to their vows and work through hard times is an admirable action. In modern times, divorce is not as taboo as it once was and is fairly easy to obtain, so there may not be as much pressure as there once was guilting couples into staying in a bad marriage.
However, if someone chooses to stick to their vows, they should at least have a plan on how to improve the issues causing the strife in the marriage and employ professionals to teach the couple new ways to deal with issues plaguing the union.
Option 3. Annulment.
An annulment is a court order declaring that the marriage was improperly formed and never existed. An annulment differs from a divorce in that divorce typically looks at the events that occurred after the couple was married and an annulment typically looks at events that occurred before the parties were married. For a court to grant an annulment, the parties must establish some defect in the forming of the marriage.
Defects include but are not limited to the parties being underage, one of the parties already being married, one of the parties lacking the mental capacity to marry, one of the parties being under duress or pressure to marry, or one of the parties committing some type of fraud to induce the marriage.
Annulments are not extremely common but may be an option if one of the parties participates in a religion that discourages divorce. Annulments can also be useful tools if they were victims of a deceitful union and require a court to invalidate acts from a deceitful union.
Option 4. Legal Separation
Legal separation is essentially a court order dictating spousal rights while the couple remains legally married and while living apart. Legal separation is a less common alternative to a divorce and may contain some benefits that would be favorable in certain situations. Legal separation is the same process as a divorce but the Judgement states that there is a reasonable likelihood that the marriage can be preserved, and it is not irretrievably broken.
A legal separation will address every relevant issue that a divorce proceeding addresses such as child support, custody arrangements for the minor children of the marriage, a division of all marital property and debt acquired during the marriage, and any spousal maintenance claims present in the relationship.
A legal separation can easily be converted to divorce in Missouri by filing a motion to convert separation to divorce, however, this motion can’t be filed according to Missouri law any earlier than 90 days after the judgment of a legal separation. The following section will detail the differences between a legal separation versus divorce in greater detail to determine if a legal separation is a beneficial option.
What is the difference between legal separation/ divorce?
Legal separation is one of the most unexplored areas of Missouri Family Law. It is most likely underutilized because the process is exactly the same as a divorce and by the time parties decide it’s time to call it quits, it’s usually a good idea to just make a clean break and avoid any unnecessary costs associated with prolonging the inevitable. However, having a good understanding of the benefits of a legal separation may be the key to solving a unique family law issue.
If looking at a legal separation in terms of a true last-ditch effort to save the relationship, a legal separation affords the parties a period of time to gain some perspective on their problems while under formal orders from the court. A legal separation also has the potential to preserve some legal privileges while physically being separate from their spouse.
Because the process of legal separation can be just as expensive as a divorce case, if there is not an apparent identifiable advantage to separation over a divorce, caution should give to choosing legal separation over a divorce.
Again, legal separations are not very common, nor should they be, but as stated, can be an attractive option in the following situations:
- Complex divorces. Often, complex divorces can take a long time to complete, and there may be situations that would require the parties to formally separate and divide certain assets with the full intention of converting the separation to a divorce. The parties may be able to better pace the proceedings with a legal separation if dealing with an issue that would take significate time to resolve before the divorce could be finalized.
- Last effort at reconciliation. A legal separation would formally provide a cooling-off period where the parties could experience a trial run of what life would be like if they divorced. The formal split could give the parties the distance to be able to seriously address the parties’ issues while having the business end of the relationship already resolved.
- Maintain marital privileges. If issues such as health care costs and tax benefits are in the way of divorcing, a legal separation may provide the parties the distance they desire while still enjoying the marital benefit that is preventing divorce. The parties are able to enjoy the medical benefits of a spouse’s insurance or other medical or tax benefit while escaping the negativity of an unhappy marriage. This may be appropriate for older couples who have no interest in remarrying and marital benefits are the only thing standing in the way of separating.
- Religious reasons. Just as parties use annulments to dissolve marriages for religious reasons, the parties may use a legal separation to formally end the business aspects of the marriage while not violating any religious rules pertaining to divorce and remaining married in the eyes of the church. It is worth noting however that if the party wanted to get married to someone else, they would first be required to convert their separation to a divorce.
A good divorce lawyer can assist you in deciding what is the correct path to take when contemplating the best options. If you have any questions, contact the experienced family law lawyers at Hale Robinson & Robinson for a free case consultation.