In Connecticut anyone who’s married can file for legal separation or a divorce at any time. The grounds for filing for legal separation or divorce are the same and are governed by CGS §46(b)-40(c). This statute states the following:
A decree of dissolution of a marriage or a decree of legal separation shall be granted upon a finding that one of the following causes has occurred: (1) The marriage has broken down irretrievably; (2) the parties have lived apart by reason of incompatibility for a continuous period of at least the eighteen months immediately prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled; (3) adultery; (4) fraudulent contract; (5) wilful desertion for one year with total neglect of duty; (6) seven years' absence, during all of which period the absent party has not been heard from; (7) habitual intemperance; (8) intolerable cruelty; (9) sentence to imprisonment for life or the commission of any infamous crime involving a violation of conjugal duty and punishable by imprisonment for a period in excess of one year; (10) legal confinement in a hospital or hospitals or other similar institution or institutions, because of mental illness, for at least an accumulated period totaling five years within the period of six years next preceding the date of the complaint.
How is a Legal Separation Different from Divorce?
With a legal separation, each separated husband and wife retains all the statutory rights of property, inheritance and administration in the estate of the other, together with all the obligations of the continuing marriage contract, except for those concerned with cohabitation. Viglione v. Viglione, 22 Conn. Supp. 65, 69, 160 A.2d 501 (1960). So in other words, with a legal separation each husband and wife retains all of the legal rights and obligations of being married, except for anything dealing with cohabitation.
Because there is no dissolution of marriage (or divorce) with a legal separation, the parties are still considered to be legally married, therefore neither party can marry again until the legal separation is converted to a divorce. The Connecticut statutes specifically state that:
"A decree of legal separation shall have the effect of a decree dissolving marriage except that neither party shall be free to marry.” (CGS §46b-67(b)).
How are Legal Separation and Divorce Similar?
In Connecticut, both divorces and legal separations begin with the filing of a summons, complaint, and notice of automatic orders. Some additional documents must also be filed if there are children of the marriage. In litigated cases, a state marshal serves the paperwork on the other party, but this requirement can be waived if both parties agree to the waiver and so notify the court.
It is important to note that with legal separation (just like with divorce) either party can ask the court to order the division of property, assets, and debts. They can also ask for support from the other. If children are involved, the court can also be asked for an order of child support, custody, visitation and even educational support. If the parties cannot agree to the terms and conditions of their separation or divorce, then the judge will decide the issues for them.
It is also important to note that you cannot be considered to be legally separated without a court order. A court will only make such an order if the parties have filed for a legal separation. A married couple that is simply just living apart without a court order is not legally separated.
In Connecticut, both divorce and legal separation have a three month waiting period. This waiting period begins on the date the petitioner files the complaint for a legal separation or a divorce. The purpose of this waiting period is to allow the parties time to work out an agreement. This waiting period can be waived if mutually agreed to by both parties and the court is notified during this three month waiting period.
Connecticut requires that both parents complete the Parenting Education Program. These are classes designed to educate adults about the many issues children face when their family situation changes. There is an out of pocket cost to attend this program and the court is notified once each parent completes the program.
With both a legal separation as well as a divorce, for a Connecticut court to have jurisdiction (in simplified terms, the legal authority to make legal decisions and orders/judgments), one of the spouses must have lived in Connecticut for at least 12 months immediately before the filing of the divorce or legal separation or before the legal separation or divorce will become final; or one of the spouses lived in Connecticut at the time of the marriage, moved away, and then returned to Connecticut, planning to live her permanently; or the marriage broke down after one of the spouses moved to Connecticut.
What are the Benefits of a Legal Separation?
Unlike a divorce, a legal separation can be undone when a petitioner (husband or wife) files a declaration of resumption of marital relations and the court vacates the separation. The opposite is true as well. See my "words of caution" below.
From the IRS' perspective, according to IRS Publication 501 (2017), in general, your filing status depends on whether you are considered unmarried or married. You are considered unmarried for the whole year if, on the last day of your tax year, you are either: unmarried or legally separated from your spouse under a divorce or separate maintenance decree. And state law governs whether you are married or legally separated under a divorce or separate maintenance decree. From the IRS' perspecitive, you are considered to be divorced If you are divorced under a final decree by the last day of the year. If you meet this requirement, then you are considered unmarried for the whole tax year. Please consult a tax professional to properly determine your correct income tax filing status and note that there are more income tax filing statuses than just "married" and "unmarried." Depending on your filing status, there maybe tax benefits.
In regards to group health insurance coverage, CGS § 38a-512a provides for a "continuation of coverage" under both a divorce and a legal separation (both "qualifying events" under 29 USC § 1163) , providing under CGS § 38a-512a subsection (E) that the plan shall provide the option for "said spouse to continue coverage for the periods set forth for such events under federal extension requirements established by the Consolidate Omnibus Budget Reconciliation Act of 1985 (COBRA) P.L. 99-272, as amended from time to time." As the coverages and costs under COBRA maybe different, laws periodically change, and each plan maybe different, it is best to consult directly with your plan administrator to detemine the coverage and costs that would be available under both a divorce and a legal separation.
In regards to the impact to potential Social Security Benefits and/or pensions, it is best to consult with an attorney or tax professional and the plan administrator, respectfully.
Can a Legal Separation be Converted into a Divorce (Dissolution of Marriage)?
The simple answer is “yes” as long as marital relations between the parties have not resumed. CGS §46b-65(b) provides an expeditious method by which the parties can convert a legal separation into a dissolution [of marriage]. If the parties have in fact resumed marital relations, they cannot proceed under CGS §46b-65(b), but must instead proceed under the general dissolution provision provided under §46b-40. Mignosa v Mignosa, 25 Conn. App. 210, 213, 594 A.2d 15 (1991). After obtaining a legal separation, either party may petition to court for a decree dissolving their marriage. (See CGS §46b-65). However, here are a few words of caution.
A Few Words of Caution:
Because a legal separation could be converted to a divorce at any time, it is important to keep this in the back of your mind when you negotiate the terms and conditions of a legal separation and ask for a court order. And just like with a divorce, when converting a legal separation agreement into a dissolution agreement, the court must find that the terms of the agreement are fair and equitable before it is allowed to make the converted dissolution agreement into an order. (See Mignosa v. Mignosa (1991)).
This does not necessarily mean that a dissolution agreement or a legal separation agreement cannot be modified post court judgment. Both can be potentially modified if the legal standards are met with the filing of a post judgment motion and the payment of a new court fee by the party filing the motion.
Can a Legal Separation be "Canceled"?
Every situation and every case are different. Therefore, it is very important to know your legal options based on the particular facts of your situation. Bulkovitch Law works to understand the details of every case so that we can assist our clients with making an education decision every step of way. We can be reached at 860-295-1600 or through the contact form on this website.
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