If you are considering a separation or divorce, it is important to know your legal rights.
By Sarah P.
Before we get started, please understand that this is not meant to be an in-depth legal analysis or legal advice. It’s a short article meant to provide you with some possible things to consider should your situation veer towards separation or divorce.
Divorce can be a complex and costly process, so it is crucial that you understand all of the potential implications before making any decisions.
In the United States, there are two primary ways to legally dissolve a marriage: divorce and legal separation. Divorce is a court-ordered termination of the marriage, which requires the agreement of both parties.
Legal separation, on the other hand, does not require the agreement of both parties and can be obtained through a court order or voluntary agreement.
There are also a number of federal laws that may come into play, such as the Employee Retirement Income Security Act (ERISA) and the Federal Tax Code.
If you are considering dissolving your marriage, consult with a family lawyer to discuss your specific situation and learn more about your rights under the law of your primary state of residence to determine which option is right for you.
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Legal Separation
If you are solely considering a legal separation, it’s also important that you understand your rights. Legal separations are different than divorces.
In the United States, there are many laws that protect married couples and their children. Once again, these laws can vary from state to state, so it’s important to consult with attorney in your state of residence.
Why would some separate versus get a divorce?
Nothing in life is cut and dry. There are several reasons why a couple might choose to legally separate instead of divorce.
Often, couples want to keep their health insurance benefits or maintain their financial stability. Others may want to stay married for religious reasons or for the sake of their children. Whatever the reason, it’s important to know your rights before making any decisions.
In most states, legal separations are granted on a case-by-case basis. The court will consider the couple’s reasons for wanting to separate and make a determination based on the best interests of the family. If the couple has children, the court will also consider their needs.
In some cases, couples may be able to agree on a separation agreement that outlines their rights and responsibilities. This agreement can be used to resolve any issues that arise during the separation. Once the couple decides to divorce, the agreement can be converted into a divorce decree.
Is “Common Law Divorce” Applicable?
It’s important to note that in the United States, there is no such thing as a “common law divorce.” A couple must obtain a divorce through the court system.
However, couples can often file for an uncontested divorce, which means they have agreed on all terms of their separation.
If you are considering a legal separation, it’s important to consult with an attorney to understand your rights and options. Only an experienced attorney can provide you with the information you need to make the best decision for your family.
Most attorneys provide free, one hour consultations.
Just because you see an attorney to understand your rights, does not mean you will file for divorce.
Inheritances and Marriage
In some states, if your spouse receives an inheritance, you will not be granted their inheritance should you divorce. In these very same states, if you receive an inheritance, your wayward spouse has no right to it either.
Knowing the laws regarding inheritance in your state is of paramount importance. Not all states have the same laws and it’s very important to speak to an attorney who specializes in asset protection.
For as we approach retirement, we will need enough of an income to support us. As we age, we may also develop serious medical issues.
We need to have the ability to pay for excellent health insurance while still being able to afford a reasonable lifestyle. A large sum of inherited money could be the vehicle that carries us through.
If a wayward spouse were to receive half of your inheritance, this could be extremely problematic for you and your future, financial outlook.
In Summary
Quick story…My best friend lost a friend who was much older than both of us.
The woman who died recently was named Allison. Allison was a widow and had a live-in boyfriend of 30 years. Allison had two adult sons in their 50’s.
The cultural norm would be that her assets go to her sons. But, Allison’s sons were estranged from her and so she wrote them out of her will and gave her home to her live-in boyfriend and her money to my best friend.
That should hold up in court.
My best friend is in her 60’s and it was a Godsend that Allison gave the money to my best friend.
Inheritance laws are tricky and it’s important for a person to know what they actually can access if they are thinking of a divorce.
It’s a myth that the spouse always shares in inheritance and its one that needs to be corrected….Forewarned and forearmed.
This article is not a substitute for legal advice and the statements in this article are general since laws vary from state-to-state.
Being well-informed and forearmed with knowledge, is truly one of the best gifts you can give to yourself.
Please speak to an attorney if you are considering a separation or divorce!!
If you have any personal experiences with separation or divorce, please share them below. Thanks!
3 replies to "What You Need to Know If You Are Considering a Separation or Divorce"
Hi All,
I wrote this post for a good reason and would love feedback. This article is not just about Allison.
Others have brought this to my attention over the years. I felt it was time to address it. Knowing inheritance law is important, when infidelity is in the picture. You may be married to someone who has a large inheritance coming to them. If you are a betrayed spouse, don’t let a spouse’s inheritance make you feel too secure. You likely won’t be able to claim it in court. And if this is the case, you would be advised to ask for a larger share of other assets such as the home, retirement accounts, and social security. We MUST take out finances into consideration.
How are you all doing?
Hi, Sarah…..
I am not doing well. My marriage is on paper only. We are basically roommates, no real affection between us and even intimacy is gone. I think he might have ED, but as many men do, he prefers to bury his head in the sand and pretend that nothing is going on. He truly believes that there is nothing wrong with us, and is so emotionally illiterate that he cannot see the proverbial writing on the wall. I have decided to move out of the shared bedroom into one of the guest rooms. I don’t know that I am ready for an all out divorce and I don’t know if we could get a legal separation while both living under the same roof. Lord knows I don’t have any assets to afford an attorney to advise me, so I can only hope that one of our most knowledgeable members can point me in the right direction. Thank you for your support through all these years and please don’t forget me in your prayers….
Hi kittyPone, I am so sorry that you and your husband are living as roommates. It appears to me that he truly wants to bury his head in the sand so that he doesn’t face up to what he did. This is an absolute tragedy. You are such a lovable human being and I am so sorry that your husband cannot see this, for the time being. I am always happy to pray for you and everyone who reads this site is always in my prayers, for infidelity is a very serious thing. 🙏