Why Would Someone Want a Limited Divorce?
By Angie Gambone
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A limited divorce is a type of separation that allows couples to settle some of their marital disputes without a final divorce. A limited divorce goes by different names in different states. It is most frequently called a legal separation. Some states call it a divorce from bed and board. It is important to note that there are some states that do not allow a limited divorce at all. Depending on your circumstances, there may be significant advantages to obtaining a limited divorce instead of an absolute divorce.
All states have residency and timing requirements that couples must meet before filing for an absolute divorce. For example, you may have to live in a state for at least one year before you can file for divorce in that state. With a limited divorce, courts may waive this waiting period, allowing you to file for a limited divorce even if you just moved to that state.
In a limited divorce, the court will enter an order that deals with all outstanding issues in the marriage. The court will divide up all existing assets and debts. The court will also deal with issues of custody and parenting time. Finally, the court can order one spouse to pay the other spouse alimony as part of a limited divorce. If a separating couple cannot agree on these issues, the court will make the decision for them. Both parties will be bound to this order even though they obtained only a limited divorce.
One of the most prominent reasons that people will enter into a limited divorce is because it allows one partner to stay on her spouse's health insurance plan. When couples obtain an absolute divorce, one spouse is typically not permitted to stay on the other spouse's insurance plan without paying costly COBRA premiums. With a limited divorce, most insurance plans consider the couple to still be married, so they are able to remain on the same insurance plan.
In a limited divorce, the court will be able to divide up all marital property. However, since the couple is technically still married, any joint property will remain under the ownership of both spouses until the divorce becomes absolute or until one party buys out the other party's interest in the property. However, with a limited divorce, each spouse will likely lose the right to inherit from the other unless their wills specifically call for an inheritance despite a limited or absolute divorce. For example, if your spouse dies without a will or without naming you in his will, you may be prohibited from suing his estate for a portion of his assets.
A limited divorce can be beneficial for couples who are considering a trial separation. Some couples may not wish to obtain an absolute divorce because of the social or religious stigma that accompanies divorce. Also, a limited divorce is very easy to undo should the parties decide to reconcile later. With an absolute divorce, a reconciling couple would need to remarry each other. This is not true with a limited divorce: The couple would remain married if the limited divorce were revoked.
Drawbacks of Limited Divorce
A limited divorce has several disadvantages. First, a limited divorce can be entered only if both parties agree to it. If one party refuses, he cannot be forced into a limited divorce. On the other hand, one person can obtain an absolute divorce against her spouse's wishes. Also, with a limited divorce, both parties may be required to file separate income tax returns. There may be tax benefits to filing a joint tax return and those benefits are lost with a limited divorce. Finally, with a limited divorce, neither party is free to marry anyone else because they are technically still married to each other. Some states even consider it to be adultery if a spouse has sexual relations with anyone else during the limited divorce.
Angie Gambone is an attorney who has been writing for various websites since 2009. She covers a variety of topics, focusing on legal issues, family law and LGBT rights. Gambone holds a bachelor's degree in social work from Rutgers University and a law degree from Rutgers School of Law, where she graduated with honors in 2010.