Connecticut Legal Separation: A Guide
The CT legislature has defined legal separation in Connecticut in Conn. Gen. Stat. §46b-6, which states that "Legal separation" means a decree or judgment of a court establishing the rights and duties of the parties, including the care and custody of any minor children. [Emphasis added]. This statutory definition makes it clear that a legal separation order isn’t at all "informal" or a unique religious order, like an Annulment. Rather, a legal separation in Connecticut is the same as a divorce, except the parties don’t actually get divorced. Thus, a legal separation order has to deal with all of the same issues that parties address in a divorce action: custody , child support, alimony (if applicable – see my blog post about what alimony is here), property division and attorney’s fees. Also, parties seeking a legal separation will likely be required to go through the divorce litigation process – mediation, family services case management, pre-trial and possibly trial. A legal separation order in Connecticut is made part of the court file, just like a divorce order is. It’s highly important to note that a legal separation order does not allow the parties to remarry in Connecticut. It is, fundamentally, a divorce proceeding without a divorce.
Getting Divorced in Connecticut
When a couple decides to end their marriage in Connecticut, the term legally used to describe that is not "divorce" but rather, "dissolution of marriage." The legal process of estate division and child custody filings in Connecticut is similar to those of divorce, and encompasses any assets distributed during the separation period. A dissolution, however, may sometimes involve alimony and child support orders, as well.
Here are a few key facts on divorce laws in Connecticut:
The grounds for divorce or dissolution of marriage in Connecticut typically means confidentiality. This means that divorce court procedures vary from those of family courts, including jury trials and appeals, which do not apply. An annulment, a court proceeding that declares a marriage null and void, has stricter requirements, but sometimes still must abide by confidential court procedures.
All divorce proceedings, or dissolution of marriage proceedings, will be thorough and detailed in Connecticut. Even if both parties agree on terms of a divorce, the couple must continue to make appearances in court with thorough documentation of assets and terms of division.
A dissolution of marriage in the state of Connecticut generally entails an order of continuation and an assignment of a "case flow monitor." The monitor usually presides over the case to ensure that all documents are filed properly and on time. The "standing order" may mean that a spouse cannot interfere with the other spouse’s residence, nor take minor children from the state of Connecticut.
Legal Separation vs Divorce: Points of SImilarity and Difference
When looking at the concept of legal separation, as distinguished from divorce, one question that often arises is: what is the difference; and, in particular, what are the differences in the law between a legal separation and a divorce? In Connecticut, separate and distinct procedures exist for both. At the time the parties commence a legal separation, both parties are still married. In fact, the legal separation is premised upon the fact that the parties are married and are, in fact, asking the court to make orders as to the separated spouses like they would in a divorce. The parties are divided into plaintiff and defendant and the action may be brought for any of the grounds for divorce, including irretrievable breakdown of the marriage, intolerable cruelty, fraud, etc.
From the perspective of the outcome of the case, the only real differences between the two claims are in matters of nomenclature. The parties are "separated" rather than "divorced" and no absolute decree of divorce is entered. The only other real difference, at least as far as the outcome of the case is concerned is in the alimony laws. Under the Connecticut General Statutes, there are no express time limits for a legal separation or legal separation alimony. Connecticut alimony laws provide that the Court may award alimony "permanently or for such a period of time as the court deems just and appropriate, having regard to the length of the marriage and the causes for the annulment, dissolution of the marriage or its legal separation". Connecticut General Statutes Sec. 46b-81. In contrast, as discussed, alimony under a divorce is usually limited and terminated after 10 years, unless the parties have been married for at least 20 years, are older than 60 at the time of the divorce, or in "exceptional circumstances," such as a spouse suffering permanent disability, pursuant to General Statutes Sec. 46b-86.
There are also certain "technical" differences between the two actions. For example, there are no specific ground provisions for legal separation, as provided for in C.G.S. Sec. 46b-40. There are different Statutory Waiting Periods for divorce and legal separation. The waiting period from the date of Service to the date of Judgment is 90 days for a legal separation and 120 days for a divorce. There are slightly different residency requirements (slightly longer for legal separation for those persons who are not residents of Connecticut) and slightly different service requirements under C.G.S. Sec. 46b-45.
The most important consideration in whether to obtain a legal separation or divorce is probably in whether or not the parties can agree to it. Legal separation is often a good alternative for those parties who cannot come to terms on a divorce, or who are not sure whether they want to move forward to a divorce as opposed to reconciliation. In such an instance, the parties can enter into a Separation Agreement, and can use the negotiation process to avoid what is often a very painful, costly and taxing procedure.
The Upsides and Downsides of Legal Separation
In Connecticut, legal separation is a court-approved change in the status of your marriage where you and your spouse are no longer required to live together, but you are still legally married. It provides many of the same benefits as divorce without the finality of dissolution. You receive a court order that generally resolves the same issues as a divorce judgment: equitable distribution, child custody, alimony, etc. But since your marital status is not terminated, the order is not final. If you later on decide that divorce is right for you, you can convert your legal separation into a divorce just by filing a motion with the family court.
Legal separation is not uncommon in Connecticut. Some then use it as a precursor to divorce. Others choose this route for religious reasons, it being a step more than just separating but without the conclusive nature of divorce. Others may choose it because of the tax benefits of remaining married, such as health insurance.
The most significant con of legal separation is that you remain married in eyes of the law. You may be required to file income tax returns as married couples, and you cannot remarry until your divorce is finalized. While typically the parties are, over time, separated, the former status as a married couple may create a potential legal claim for alimony or even request for a temporary alimony award.
Like divorce, legal separation requires a significant amount of client emotional investment and is likely far from the best result.
The Advantages and Disadvantages of Divorce
Frequently in Connecticut, people ask us "do I have to be legally separated before I can get a divorce?" And when we say that there is no legal separation in Connecticut, they often ask if there is an advantage to filing for divorce instead of just remaining physically separated. While this question has many factors, we have outlined some legal pros and cons to the divorce below. The list of pros and cons applies only to divorce proceedings, not legal separations, because there is no such thing as a legal separation in Connecticut. Over the years, some divroces have resolved amicably and some have been more litigious. The requirement to file a "dissolution of marriage" action in a Connecticut court is not an impediment to resolving a case amicably.
PROS: Generally speaking, from a strictly legal standpoint, the most concrete difference between divorce and legal separation in Connecticut is that a judge signs a final judgment on your divorce once you have settled all of the issues in your case or tried your case , and the divorce has the same legal finality as any other judgment. In a divorce, once you have the final judgment, there are no other options. In fact, the judgment of dissolution of marriage is a final judgment provided for in the Connecticut General Statutes. Additionally, within the four-month waiting period, the court will provide to you a document which sets forth certain financial considerations that are used in distribution of assets (for example, the average of the last two years of your tax returns). This "presumptive fair value" is particularly useful for couples that did not keep good records or for those that failed to cooperate and give the party their financial information to evaluate the marital property.
CONS: This leads to the more significant con of divorce being that the court must approve the financial breakdown of your marital estate, including but not limited to all asset valuations and distributions, alimony, child support and time-sharing with minor children before you leave the courthouse.
Staying or Going? Deciding Between Legal Separation and Divorce
Deciding whether to pursue a legal separation or a divorce is one of the most important decisions you’ll make during this difficult process. For some couples, a legal separation may be a more appropriate option, while others may benefit from proceeding with a full divorce. Consider the following factors when making this determination:
- Does divorce mean the end of your relationship? While the two spouses remain legally married, the couple can have an opportunity to work on their issues and stay in contact. Because the legal separation doesn’t terminate the marriage, there is a potential to reconcile.
- Do you and your spouse have a mutually beneficial plan for marriage or co-parenting? A legal separation would be best to preserve your retirement or pension benefits. This is also an ideal option if you think you and your spouse may get back together, or if you need more time before deciding on the future of your relationship. You will not have to take a guilty feeling with you to the grave, something that could happen to someone who just files for divorce and never looks back. A legal separation will separate the bonds of your assets and debts from your spouse. You will be able to manage your own finances. Any future purchases made by you, such as a new car, will not be considered marital property and will not be subject to division later on.
- Is your spouse requesting separation or divorce? If your spouse is the one asking for a divorce, you may not be able to simply move forward with a legal separation, as your spouse has a different plan in mind. If this is the case, or if you think that your spouse would refuse a legal separation, it may be best to simply proceed with the divorce. However, a conversation with your spouse about your options is a good idea. Both you and your spouse should consider all available options.
- Is one spouse emotionally or financially dependent? One spouse may be financially or emotionally dependent on the other. In this situation, perhaps a temporary separation instead of a full-fledged divorce might be a happier outcome for both parties. Alternatively, you may want to separate legally in order to come into your own before getting a divorce.
Legal and Emotional Support for You
Connecticut offers a range of resources for individuals facing a legal separation or divorce. Legal aid services are available for low-income individuals who need assistance navigating the legal process. Connecticut Legal Services, Inc. and New Haven Legal Assistance Association are two organizations that provide such services in CT. Individual counseling is crucial during this tumultuous time. Many therapists and counselors specialize in working with individuals who are going through a legal separation or divorce. Mediation services are invaluable , as they provide a neutral platform for spouses to discuss terms of their separation or divorce. The Academy of Professional Family Mediators provides a list of certified mediators throughout CT. Support groups are immensely helpful in providing comfort during this difficult emotional period. Support groups offer a safe and non-judgmental environment to discuss feelings and experiences. They can be especially welcoming places for children of separating or divorcing parents. Human service & senior centers provide additional support to help with legal paperwork, housing, and/or food. The Connecticut Bar Association maintains a list of local centers. The Connecticut Judicial Branch provides information to help CT residents navigate the divorce process. The Judicial Branch Family Services indicates where to go for self-help divorce information, including instructions for completing and filing forms.