In Nevada, married spouses considering divorce can choose the option of legal separation instead. In some circumstances, legal separation provides desirable benefits to the spouses that divorce does not. In this blog post, experienced Las Vegas family law attorney Joseph Gersten explains the difference between legal separation and divorce and provides considerations to take into account in determining the right choice for your situation.
Nevada state law provides a specific process for obtaining a legal separation. The process requires one of the spouses to file an action in district court for “permanent support and maintenance.” When the action concludes, the spouses receive a court order establishing the terms of legal separation. A court generally grants separate maintenance only when both spouses request it. If one spouse wants legal separation but the other prefers a divorce, the judge usually grants divorce rather than separation.
A separate maintenance court action is the only way for spouses to obtain a legal separation in Nevada. Even a written agreement between the spouses does not constitute a legal separation under Nevada law.
Unlike a Nevada divorce action, there is no residency requirement for filing an action for a legal separation in Nevada. That is one of the differences between the two processes. Another important difference is that a legal separation court order does not legally terminate the marriage. Spouses cannot remarry after a legal separation, since they continue to be married to each other. The court order in a divorce action does legally end a marriage, which enables the former spouses to remarry.
In Nevada, grounds for divorce also constitute grounds for a legal separation. A divorce or separate maintenance action may be based on (1) incompatibility, (2) living apart for one (1) year, or (3) mental incompetence of a spouse for at least two (2) years. A spouse may also file an action for separate maintenance after a period of desertion that lasts for at least ninety (90) days.
A court order for legal separation stays in effect until the spouses reconcile or divorce, unless the order includes other terms relating to reconciliation or divorce. Spouses can request modification or termination of a separate maintenance order after it is initially entered by the court.
A Nevada judge can address all the same issues in a separate maintenance action that can be addressed in a divorce. Those matters include child custody and support, spousal support, and division of real and personal community property. Specific Nevada laws apply to court determination of those issues.
If the spouses have a valid prenuptial or postnuptial agreement, the court order must be consistent with the provisions of the agreement in both separation and divorce actions. However, in a legal separation action, the court cannot order a lump sum payment for child support.
The provisions of a legal separation order are not binding on the judge in a subsequent divorce action, unless the separate maintenance order specifically states that the terms are binding in the event of a divorce.
With a legal separation, the spouses are still legally married. Some resulting benefits include filing joint taxes, continuing spousal health insurance or other insurance, or retaining survivor benefits under Social Security or the military. Those benefits sometimes are reasons for a couple to consider legal separation instead of divorce, since they are not available if a married couple gets a divorce.
Spouses may prefer to obtain a legal separation before they determine their next step, especially when reconciliation is a possibility, or because a legal separation can have less of an adverse effect on younger children than a divorce. In addition, legal separation may avoid some of the complicated aspects of property division that accompany a divorce. Separation also may be an option if a married couple practices a religion that forbids divorce.
If your circumstances warrant consideration of legal separation instead of divorce, your first step should be discussing your situation with an experienced family law attorney who handles both types of proceedings. Your lawyer will explain the advantages and disadvantages of both options and help you make an informed decision about which alternative is better for you.
At The Gersten Law Firm, your initial consultation is always free. We help clients with all types of domestic matters, including divorce and legal separation. Attorney Joseph Gersten always takes a compassionate approach to family law matters, while fully protecting the client’s rights and interests. He has the knowledge, skill, and experience to help you navigate through any type of domestic concern.
If you need assistance with a family law matter in Las Vegas, Henderson, or elsewhere in Clark County, call 702.857.8777 or contact us online to schedule an appointment.