What is the Difference Between Legal Separation and Divorce in Colorado?

Uncontested Divorce Mediation

Posted January 26, 2021

The short answer is: Not as much as you might think!

Colorado Divorce Law Myth:  “In Colorado you must file for a Legal Separation prior to filing for a Divorce.”  Fact: Although a person may elect to file for a Legal Separation prior to Divorce, this is not required and ultimately you should have a clear reason for electing to file for a Legal Separation rather than a Divorce.

Before discussing the differences between Legal Separation and Divorce in Colorado, it might be helpful to understand the similarities between these procedures.

• Filing Forms – The Colorado court forms utilized to file for a Legal Separation or a Divorce (the Petition and Case Information Sheet) are exactly the same, the difference lies in the the type of Decree requested: Legal Separation or Dissolution of Marriage (a “Divorce”).
• Documents – The documents that your Split Simple mediator will prepare for you in your Colorado Divorce or Legal Separation will be very similar because both processes address and resolve issues of property division, parenting and support.
• Procedure – The procedure for obtaining a Colorado Divorce or Legal Separation is almost identical.  Specifically, assuming that you reach an Agreement, the Court will grant the Decree, making your Separation Agreement a court order, approximately ninety one days after filing your Petition for Divorce or Legal Separation.
• Tax Status – The Internal Revenue Service views a Legal Separation or Divorce as having the same effect: you and your spouse will file as separate tax filers for the year in which the Court grants your Legal Separation or Divorce.  In other words, you will not file “married” but instead “single” or “head of household” depending on your situation.

Despite these similarities, there are some important differences.

• Marital Status – Perhaps the most important difference, of course, is that once a Court enters a Divorce, you are no longer married and are free to enter a new marriage with a different person.  In contrast, when a Court enters a Decree of Legal Separation you remain married to your spouse and under Colorado divorce law you may not enter into a new marriage while legally separated.  Furthermore, once a Court enters your Decree of Legal Separation, your status as “legally separated” remains in place for a minimum of six months.  After that six month period, either person may file the simple paperwork to convert the Decree of Legal Separation into a Decree of Dissolution (a “Divorce”).  Parties will not review or revisit any terms of the original Agreement and Decree as part of this decree conversion and the Divorce will be approved by the Judge in less than thirty days.  If neither party takes any affirmative action, you remain “legally separated”.
• Inheritance and Estate – An additional difference between these procedures is that in the event of a Decree of Legal Separation, you remain married for inheritance or estate purposes, whereas in the event of a Divorce you are no longer considered married to your then ex spouse.  In either event, you should always consult with your estate attorney regarding the associated impact of either a Legal Separation or Divorce in Colorado.
• Health Insurance – One other consideration when electing whether to proceed with a Legal Separation or a Divorce in Colorado is health insurance.  For most (but not all) health insurance plans, entry of a Divorce will eliminate coverage for an ex spouse as a dependent on the same plan.  When it comes to health insurance and Legal Separation in Colorado, it is important to ask your health insurance carrier the following question:  “May I continue to cover my spouse as a dependent on my health insurance plan with no additional cost following entry of a Decree of Legal Separation ?”  In the event the answer is “yes”, think about obtaining confirmation in writing from your health insurance provider.  More and more plans now allow for this continuing coverage after entry of a Decree of Legal Separation, so it is worth the time to find out whether this is an option for you and your spouse.

Although much of the procedure and paperwork associated with Legal Separation and Divorce in Colorado is similar, you should ultimately have a reason for electing a Legal Separation.  For some, the reason is hope for reconciliation or providing some time for emotional healing before entry of the actual Divorce.  For others, one important reason for electing a Legal Separation is health insurance coverage.  Although rare, there are also some unique circumstances whereby spouses elect to proceed with a Legal Separation due to estate or inheritance issues.

If you have further questions about these options for Divorce and Legal Separation in Colorado, give us a call at Split Simple today.  We can help you and your spouse find the right option during this difficult time.

Split Simple
1624 Market Street #202
Denver, CO 80202
720-501-4600