Divorces are difficult. In real life and in the news, we always hear about this person divorcing their significant other. Therefore, some people choose a legal separation rather than put their family through the big “D”. A legal separation can save heartache and allow both parties to decide if theirs is a marriage worth saving or if it is truly time to call it quits.
For many couples, it is the break they need if they want to avoid becoming just another statistic. However, in Louisiana, it can be a little more complicated than simply going to the courthouse and requesting a divorce.
What is Legal Separation?
A legal separation is defined as an arrangement where married couples live apart, but remain legally married. This can be achieved by both parties agreeing to the separation or being ordered to separate by the court.
Who Can File for A Legal Separation?
Louisiana is one of just a few states that see marriage in two ways. There is a “traditional” marriage and a “covenant” marriage. The type of marriage couples are involved in will determine the separation options they have.
Traditional Marriages
In a traditional marriage, the couple may leave the marriage when they feel it is warranted. A traditional marriage requires neither party to provide proof of why the marriage is no longer working. Each person must simply feel that there are irreconcilable differences or an irretrievable breakdown of the marriage. The judge will sign off, granting a divorce, provided there aren’t other issues making it a complicated divorce. Some of the biggest things that will halt a divorce is if one party doesn’t want it or there are kids involved.
With this in mind, Louisiana doesn’t provide an option for a “legal separation” to those who are in a traditional marriage. Couples who feel confident they will divorce can seek a “mensa et thoro.” This simply means they are living apart, but are still legally married. To qualify for it, one party must be able to show:
- Adultery Was Committed
- Physical Abuse Has Occurred
- One Party Was Convicted of a Felony
- Live Apart for Two Years or Abandonment Has Occurred for a Year or More
Of course, couples always have the option to separate without involving the courts. This can allow them to remain married in all legal ways until deciding whether to obtain a legal divorce or remain together. If one or both parties decide to seek a divorce, it will fall under Article 102 or Article 103 divorce law, which simply reiterates that there is no fault, but the two cannot get along or work out their differences.
Covenant Marriages
A couple enters this type of marriage with the knowledge and understanding they are making a lifelong commitment to one another. Couples who choose this option are agreeing to not get divorced. To divorce a partner, the filing party must be able to prove:
- Abandonment
- Adultery
- Abuse
- Chemical Dependency
- Felony Charges
- Or Separate Living Spaces for at Least Two Years
The couple must also try to reconcile their differences through marital counseling prior to filing for divorce. Marital counseling is an important step. Without it, one party can file exceptions stating the other person did not follow the proper channels.
If the couple is currently living apart because of a legal separation, the two-year minimum may be lowered to one year. If there are children involved, the minimum can be approximately 18 months.
Benefits & Drawbacks of A Legal Separation
There are a variety of reasons people may choose to attain a legal separation rather than a divorce. Most of them are beneficial for one or both people involved. Some of the top reasons include:
- Religious Beliefs
- Want to Avoid Costly Divorce Filing
- Relationship Evaluation
- Keep Insurance Plans, Retirement Benefits, Income Tax Breaks, ETC.
- Slowly Transition to Divorce (which may take up to 180 days, 365 days, or two years)
Regardless of the reason for it, legal separation is often a good choice for some people. It could have even helped celebrities who were filing for divorce and chose to stay married a little longer.
Some people also feel a legal separation rather than divorce can actually strengthen a relationship. It allows both parties to remove themselves from a tough situation, clears their head, and evaluate what the other person means to them.
However, despite the benefits, there are also reasons a couple may want to divorce rather than merely separate. It will:
- Allow Remarriage to Another Person
- Permanently Separated Couple
- Leave Each Person in Charge of Their Own Property and Well-Being
When a couple’s divorce is finalized, they go their separate ways. This means they are no longer each other’s next of kin or able to access the financial property without permission from the other person. It is a full separation from the minute the divorce is finalized, which may be important to some couples.
How Does Filing for A Legal Separation Work In New Orleans?
In a traditional marriage for New Orleans residents, the best way to handle a “separation” is to simply agree to go separate ways. If the couple feels something legal should be in place to protect both parties, they may separate with a contract that shows what each responsibilities are. For instance, an agreement for childcare responsibilities, personal property, and other things.
When the couple were wed in a covenant marriage, they needed to attend marriage counseling first. This allows the couple to see if there is the hope of a resolution that doesn’t lead to divorce. It also shows the judge that every effort has been made by the parties. If there is no reconciliation, the couple must go forward with proving why they cannot remain in the marriage.
If the parties have done all they can to save the marriage and wish to go forward with separation, there are forms available that can make it easier. However, in situations where children are involved, or the two parties cannot get along, it may be easier to seek help.
If you are dealing with a legal separation, schedule a consultation today by calling (504) 523-6496.
