Dissolution vs. Legal Separation: What’s the Difference?

Have your friends and family advised you get a legal separation instead of a divorce?  Both change your status from married to single.  Both cannot be granted until after a 90-day waiting period.  Both are decrees from the court that include a division of assets and debts, a determination of maintenance (if any), and a parenting plan with child support (if there are children).  So what’s the difference then?  The difference is that with a divorce, the moment the decree is issued you are a separate taxpayer, free to remarry again.  If you obtain a legal separation, you become a separate taxpayer, but, and this is a big but, you are NOT free to remarry.  What?  Not free to remarry?  Who would ever choose legal separation?  People who choose legal separation may do so because they are still “examining their relationship” and are not sure it’s really over.  Legal separation permits them to complete this evaluation process, and if it is really over, to easily convert the legal separation to dissolution by filing a simple motion with the court.  Some of the more pragmatic reasons for choosing legal separation are inheritance rights are not forfeited, retirement related or social security benefits are maintained, religious or moral beliefs surrounding divorce, and health insurance benefits are not lost.  Health insurance companies and retirement fund management companies are catching on though and many, in an effort to improve their bottom lines are including plan provisions that no longer permit a legally separated spouse to be covered or to benefit from the named spouse’s plan.  If continued benefits are the primary reason for obtaining a legal separation as opposed to dissolution, a written confirmation that the benefits in question will not be terminated upon legal separation should be obtained beforehand.  Consult with a family law attorney to be fully advised before making your decision.

Offers of Proof - How to Tell Your Story

“What, I don’t get to tell the judge my side of the story?”

            Yes, but through your attorney.  Judges prefer and are requesting that direct testimony from the parties in domestic relations temporary orders hearings and post-decree motions hearings occur by offers of proof rather than direct examination by the party on the stand.  Courts are primarily taking this approach in the interest of judicial economy.  Dockets are full and efficient use of time has become paramount.  This can be frustrating if you are the party in the proceeding who wants to have a chance to tell the court your side of the story.

            An offer of proof provides your attorney the ability to tell the Court what you, the client would say if you were to testify.  The hearing will work something like this:  Your attorney will proceed with the offer of proof as to your testimony.  The Court will then swear you in and inquire whether there are any corrections to the offer or whether you accept the offer as your testimony.  The opposing attorney will then have the opportunity to cross-examine you on the witness stand, and your attorney will have a chance to re-direct you.

            The critical element here, the way you get to tell your side of the story, is through the thoughtful and thorough preparation of the offer of proof of your testimony by your attorney.  Preparation is key.  Your attorney should meet or teleconference with you to review your testimony for accuracy and completeness.  You should be aware of and feel comfortable with the contents of the offer of proof that will be made.  After all, it’s your sid