Legal Separation vs. Divorce

A quick note before we begin: Everything here is for general informational purposes only and is not legal advice. For advice about your specific situation, talk with a Colorado family law attorney.

Your Situation

You're trying to decide between a legal separation and a divorce — or you may already have a legal separation and are wondering whether to turn it into a full divorce. In Colorado, these are two genuinely different legal outcomes, even though they travel almost identical roads to get there. A divorce (the formal name is "dissolution of marriage") ends your marriage entirely. A legal separation divides your property, debts, support, and parenting arrangements, but leaves you still legally married — meaning neither of you is free to remarry unless and until the separation is later converted to a divorce.

Why does this matter? The choice affects your marital status, your ability to remarry, how property acquired later is treated, and even things like insurance, tax filing, and estate planning. People often choose legal separation for religious reasons, to preserve certain benefits, or simply because they want more time before making the divorce final. This guide will help you understand what each path involves, what the law requires, and how to move between them if you change your mind.

What the Law Requires

Both divorce and legal separation are available to married couples and to people in civil unions, and Colorado uses the same process — the same forms, the same residency rules, and the same waiting period — for both. In fact, a single petition form and a single decree form cover both outcomes; you simply select which one you're asking for.

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The one essential difference is that a legal separation keeps you legally married, so neither of you can remarry until the separation is converted into a divorce.

A few specific rules the statute and court forms set out:

• The same prerequisites apply to both. For either outcome, Colorado law requires that one spouse has been domiciled (lived) in Colorado for 91 days before filing, that the marriage is irretrievably broken, and that a waiting period has passed before a decree can be entered.
• If one spouse asks for legal separation, the court grants it in that form — unless the other spouse objects. When one party requests separation rather than dissolution, the court grants the separation unless the other party objects to it.
• Property division works the same way in both. Colorado law directs the court to set apart each spouse's separate property and divide the marital property equitably in both dissolution and legal separation. The division analysis isn't unique to divorce.
• Property acquired after a separation decree becomes separate property. Once a decree of legal separation is entered, anything a spouse acquires afterward is treated as that spouse's own separate property, not marital property.
• Converting a separation to a divorce requires a waiting period. Colorado law lets either party — not just the one who originally filed — convert a legal separation decree into a full divorce, but only after at least 182 days (roughly six months) have passed since the separation decree was entered. The converting party must give the other party written notice, and the motion must be filed in the same court that issued the original decree. This waiting period is mandatory and cannot be waived.
• You can switch your pending case between the two before final orders. Before the court enters final orders, either party (or both together) can file a motion to change a divorce petition into a separation petition, or vice versa. This applies to marriages and civil unions alike.
• Name restoration is available either way. If you take a legal separation rather than a full divorce, you can still ask the court to restore your prior name.

One important estate-planning wrinkle: because a legal separation does not terminate the status of husband and wife, it is not treated as a divorce under Colorado's probate code. That can create unexpected consequences on the death of a legally separated spouse — something worth getting advice on.

What Courts Typically Do

In practice, Colorado courts treat the two proceedings almost identically. The requirements for entering a decree, and the issues the court must decide — property, debt, support, maintenance, and parenting — are the same whether you're getting a dissolution or a legal separation. The main practical difference the court recognizes is simply that a legal separation doesn't end the marriage.

A common misconception is worth clearing up: legal separation is generally not cheaper than divorce. Because the process mirrors a divorce almost step for step, the cost is unlikely to differ much.

Courts also honor the "convert later" option as a built-in cooling-off feature. If parties agree to switch between separation and dissolution before the decree is entered — by a joint or unopposed motion — courts treat that request as one they cannot deny.

Be aware of a practical trap that can arise after a separation decree: if separated spouses later co-mingle their separate assets or buy property together in joint names, the status of that property can become contested. Resolving those disputes may require extra proceedings before the separation can be converted into a divorce.

Step by Step: What to Do

1. Confirm you meet the basic requirements. One of you must have lived in Colorado for at least 91 days, and the marriage must be irretrievably broken. These apply whether you choose separation or divorce.

2. Decide which outcome you actually want. Think through marital status, remarriage, insurance, taxes, and estate issues. If you're uncertain, remember you can start as a separation and convert to divorce later — or switch your petition type before final orders. A short consultation with a family law attorney can be money well spent here.

3. File your petition, choosing divorce or legal separation. A single petition form covers both; you'll select which relief you're seeking. If you and your spouse agree, you can file jointly as co-petitioners, which skips the formal service step. If only one of you files, the other must be formally served and given a chance to respond. You don't need to hunt down or hand-fill these forms — the guided wizard on this site will interview you and prepare and pre-fill the correct paperwork for your chosen path.

4. Work through the standard issues. Both paths require addressing property and debt division, support, maintenance, and (if you have children) parenting. If you reach an agreement, you can put it in a written separation agreement; mediation is commonly part of preparing for the hearing.

5. Attend your hearing and get your decree. A judge — never a jury — decides any remaining issues and enters either a decree of dissolution or a decree of legal separation.

6. If you chose separation and later want a full divorce, wait at least 182 days after your separation decree was entered, then file a motion to convert in the same court that issued the original decree, with written notice to the other party. Either spouse may file this — not just the one who started the case. The wizard can prepare the conversion paperwork for you as well.

What Research Shows Can Help

The items available for this guide focus on Colorado law and court procedure rather than social science findings on separation versus divorce. There isn't research material here to summarize, so rather than pad this section, I'll be straight with you: for questions about long-term outcomes for you or your children, you'll want to look beyond this particular guide.

What to Do Today

• Write down the date of any existing decree. If you already have a legal separation decree, note its entry date clearly so you can calculate the earliest date — 182 days later — you'd be eligible to convert it to a divorce.
• Make your choice list. Jot down what matters most to you: remarriage, insurance, tax status, estate/probate concerns, religious reasons. This will clarify whether separation or divorce fits better.
• Confirm your residency timeline. Check that at least one of you has been domiciled in Colorado for 91 days before filing.
• Start the guided wizard. It will walk you through your situation and prepare the correct forms for a divorce, a legal separation, or a conversion — whichever you need.
• Consider a brief consult. Because the separation-versus-divorce choice affects status, benefits, and estate matters, a short talk with a family law attorney can prevent costly surprises.

Related Issues to Be Aware Of

• Understanding the divorce process: Because separation and divorce follow the same procedural road — same residency findings, same waiting period, same judge-decided issues — understanding the overall dissolution process tells you most of what to expect in a separation case too.

• Property division: The court divides marital property equitably in both proceedings, and marital misconduct isn't a factor. Pay special attention to the rule that property acquired after a separation decree becomes separate property — and to the risk of co-mingling assets afterward, which can create disputes.

• Spousal maintenance: Maintenance (alimony) is decided under the same framework whether you separate or divorce, so the court will make the same financial findings either way. Know that historically, awards that terminate property rights were treated more cautiously in separate-maintenance situations than in divorces.

• Insurance and benefits continuity: This is one of the biggest practical reasons people choose separation over divorce, since staying legally married can preserve certain coverage. Note that neither party may cancel or let health, home, auto, or life insurance lapse without proper notice and consent during the case.