Articles

A Separate Issue

Bruce Clement 11/22/99

Dan and Sue were married for six years and had two children. Sue began to notice that Dan was drinking a little bit too much, so she started making comments to him, and asked him to cut back on the booze. Dan did cut back, but in a couple of months Sue realized that he was concealing his intake. She found a six-pack in his car, and a bottle of vodka in a paint cabinet in the basement. Dan refused to do anything about his drinking. Sue gave him information about Alcoholics Anonymous and treatment centers, but Dan only became increasingly resentful and angry.

Another related problem was the matter of debts. Both Sue and Dan had worked since getting married, and between the two of them they had a decent life. But Dan had begun to over-spend; he had racked up several thousand dollars of credit card debt just in the last year. Sue was afraid that he would not only ruin her credit rating, but might even cause both of them to become insolvent and have to file bankruptcy.

The final straw was when Sue came back one Sunday afternoon with the kids from a Holiday party at the YMCA and found Dan passed out on the couch, with empty beer bottles strewn around the living room. She took the kids to the house of her best friend, Mary, and talked it over with her. Sue knew that she couldn’t stay with Dan under these conditions, but just couldn’t bring herself to consider divorce. Mary gave her the name of a good lawyer, Larry Clean, and said "Why don’t you just go to him confidentially and see what your options are? Ask for a free initial consultation – what have you got to lose?’

Sue took Mary’s advice, and saw the Mr. Clean. He explained her rights in a dissolution (divorce) proceeding. She already knew the basics: the combined income for her and Dan gave Sue right to $1,100 a month in child support; half of the child care and medical bills; half of all bank accounts, furniture, appliances; one of the two cars; possession of the house with the equity to be split at a later date. Still, she cared for Dan and could not bring herself to hire a lawyer to file for divorce. She felt that there was still a chance for Dan to pull himself together. She just needed a few days or weeks apart from him. Wasn’t there an alternative to filing for divorce?

The attorney told her that she could file for a Legal Separation instead. A Legal Separation would give her the time and space to recover a little from the emotional rollercoaster she had been on. All right, said Sue, but why should I hire a lawyer? We could just separate by agreement without filing anything in the Court. In fact, Sue told the attorney that she had a friend who did just that.

The biggest problem with just separating informally, said the attorney, is that nothing is legally resolved. You would have no practical way to get child support. Dan could continue to rack up debts, and you would be liable for them too. Worst of all, since Dan is the father of your children, he has every legal right to just take off with the kids and move to Tallahassee. You might eventually get the children back, but you would have to pay at least two or three times the legal fees for a Legal Separation.

OK, said Sue, so why would anyone ever file for a Dissolution? Can’t you get the same basic orders from the Court: a clear division of responsibility for debts, allocation of property rights, child support, and some peace and quiet for a change. Mr. Clean agreed.

The cost of a Legal Separation is basically the same as a divorce. Maybe even less, since by its nature a Legal Separation is almost always done by agreement of both husband and wife. And after the Court order of separation is entered, the parties can convert the Legal Separation into a Dissolution proceeding at any time.

That being the case, Sue asked, why bother to get a divorce? Is there ever any advantage to just filing a divorce to begin with?

For one thing, said Mr. Clean, my experience is that Legal Separations almost always end up in Divorce anyway. They most often just end up delaying the inevitable. On the other hand, Legal Separations also almost always go more smoothly than when the parties start immediately with a divorce. Especially when one of the parties is hoping for a reconciliation, Legal Separation is less of a bitter pill to swallow than a divorce. For that reason, a Legal Separation usually allows for a calmer and more peaceful separation of the parties.

As she left the lawyer and headed for home, Sue knew that Legal Separation was going to be her choice. Less muss, less fuss. And besides, maybe Dan will see the light after all.