Most people probably understand the basic idea of a divorce. The separation of a marriage, any property between spouses, and an often expensive and complicated custody dispute. Absolute divorce is called absolute divorce because it’s just that…absolute. A divorce that’s done properly cannot be undone. Additionally, a divorce means the end of all the benefits married people gain from tax incentives to health insurance. Luckily, the American legal system recognizes that a divorce should not be the only option available to struggling spouses.
A legal separation, formerly known as Divorce from Bed and Board, allows spouses to cease marital functions such as living together without losing the financial and support benefits of being married. T.C.A. § 36-4-102 (Lexis Advance through the 2016 Regular Session and the 2nd Extraordinary Session of the 109th Tennessee General Assembly) This allows couples to take some time apart to really work on their marriage to try to focus on working through marital obstacles. A legal separation is essentially breathing room for both parties while they are still married. Legal separations should not be seen as just an alternative to a divorce. In fact, courts sometimes have the ability to make a determination that a legal separation is not the proper order to grant, and instead grant an absolute divorce. This was spelled out in an unreported case in Tennessee in regards to a wife wanting a legal separation so she could keep medical benefits. Hill v. Hill, 2008 Tenn. App. LEXIS 238, 2008 WL 1822453 (Tenn. Ct. App. Apr. 23, 2008)
“purely financial reasons are simply not sufficient to justify an award of legal separation instead of divorce.”
Hill v. Hill, 2008 Tenn. App. LEXIS 238, *18, 2008 WL 1822453 (Tenn. Ct. App. Apr. 23, 2008)
What we learn is that a legal separation is useful but not really meant to be used when one spouse wants an absolute divorce. Id at *11–*12, 1-6 Richards on Tennessee Family Law § 6-9 (2016)
Information listed within this article is for informational purposes only. Please speak with a licensed attorney prior to filing for a divorce or legal separation to determine the best course of action in your specific case.
OVERVIEW SUMMARY
| Legal Separation | Divorce | |
|---|---|---|
| Uses Grounds for Divorce found in T.C.A. § 36-4-101 | X | X |
| Allows for Division of Property | X | X |
| Allows for Determination of Custody and Visitation | X | X |
| Allows for reconciliation without remarriage | X | |
| Allows for continuation of Healthcare Benefits** | X | |
| Allows for survivor benefits in the event of one spouses death | X | |
| **Subject to policy terms and exclusions |
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