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What is the Difference Between a Legal Separation and Divorce?
When it comes to dissolving a marriage in Nevada, you have three choices:

  • File an annulment which dissolves the marriage as though it never occurred, at least from a legal standpoint.
  • File a divorce, unless you object to divorce for religious or personal reasons, or you are uncertain if you want to dissolve the marriage. If this is the case, your best option is below.
  • If you aren't ready to sever the marital ties, you can file an action for separate maintenance instead, also commonly known as a legal separation.

Those who do not wish to divorce, or wish to think about it for a while to be certain this is the best course of action, but who do wish to protect themselves from the financial obligations entered into by a spouse after the parties have separated, have this option of a legal separation.

Another reason for choosing a legal separation over divorce is when one party is on the health insurance of the other and does not want to lose the coverage it offers.

If a divorce is filed at a later date, the terms of the Separate Maintenance can be incorporated into the Decree of Divorce, if this was decreed in the final decree of separate maintenance.

Essentially, a legal separation addresses all issues normally addressed in a divorce, falling just short of dissolving the marriage. In other words, you divide all property, divide financial obligations and responsibility, and handle any issues relating to children, but you remain married.

The following issues can be addressed in both divorce and a legal separation:

  • Spousal and child support.
  • Possession and division of current community property and debts.
  • How the future income, property, and debts of the parties will be handled.
  • Relationship to divorce decree and reconciliation.
  • Tax issues (personal income taxes, property taxes, etc.).
  • Attorney fees for both the legal separation and the divorce.
  • Any estate planning (most often occurs when the parties have children together).

Before filing for divorce, which dissolves the marriage completely, especially when you have minor children, it's wise to consider filing a legal separation first as a way to test if you really do wish to end the marriage.

Below are some circumstances and conditions under which you should look at legal separation instead of divorce:

  • Older couple where medical insurance and spousal benefits are important.
  • Couple with children who want to cause minimal trauma to children during separation.
  • Couple who are on the fence about divorce and want to test a separation.
  • Long marriage where the cost and consequences of unwinding the community property is not worth the attorney fees, appraisal costs, and expert fees.

Oftentimes, separate maintenance provisions have a clause that indicates that in the event of a divorce, the obligations, duties, rights and responsibilities contained in the decree of separate maintenance will be incorporated by reference into the decree of divorce. Adding such a clause is a good idea as long as you also have a clause addressing how future earnings and property gained after the legal separation will be handled. For instance, if your final decree of separate maintenance states that the property and the debts addressed therein will be incorporated into the final decree of divorce as is, without addressing future earnings and ownership of property, you might feel cheated if your spouse ends up with a huge increase in the equity of a house you owned together, but that transferred to your spouse as a result of the legal separation.

In Nevada, a separate maintenance cannot be filed as a joint petition. There is no Nevada Revised Statute allowing for a joint decree of separate maintenance, whereas it is possible to file a joint petition for divorce if both parties agree to sign both the joint petition for divorce and the decree of divorce before the case is filed at Family Court.

Parties are free to include any provisions they wish in their legal separation, or divorce pleadings, as long as said provisions comply with the law and are not against public policy. For example, in Nevada, parties to a divorce or separate maintenance cannot agree to a lump sum for child support because the Supreme Court has ruled against such a provision. Family courts have the duty and the power to look out for the best interests of the children.

If the parties reconcile after a legal separation filing, the decree of legal separation will be terminated; if the parties separate again, a new legal separation filing will be required unless the first filing contained a provision that the first decree of legal separation will continue in full force if the parties reconcile then separate anew.

In a divorce, there is a six months period of time during which the parties can ask the court to have the final decree of divorce set aside. After six months has elapsed, the parties' only option if they wish to reconcile is to get married again.

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