There are many considerations that go into deciding when to get a divorce. For some, even when the marriage has come to an end, divorce may not be an immediate option for various reasons. Couples who do not want to stay together, but are not ready for a divorce, may find the solution is filing for a legal separation.

Why a Legal Separation?

Some of the reasons for avoiding divorce are religious, financial, or social. It may be that a couple’s religion does not allow divorce, or that one spouse needs to stay covered as a spouse under the other’s health insurance policy for a period of time. Other couples may remain married in order to reach a certain number of years of marriage and qualify for benefits. For example, one spouse can qualify for another spouse’s Social Security benefits after they have been married for 10 years.

A legal separation may be the better option for couples in these situations. A legal separation involves more than just one spouse moving out, and the couple living separately.

When a couple gets married, it is common practice for one spouse to take their new spouse’s last name as their own. Traditionally, it was the wife who took her husband’s family name, however, over the past few decades, other options have included the husband taking his wife’s last name as his own or one of the spouse’s hyphenating their maiden name with their spouse’s name. Regardless of which spouse changed their name legally when they wed, the good news is that there is no law that bars them from changing back to their maiden name should the couple divorce.

Changing Back to Your Maiden Name

Once a resolution has been reached on any legal issues the couple may have, the court will issue a divorce decree. Included in this decree is the choice of the spouse who took on the other spouse’s last name to change back to their maiden name without the need to take any other legal steps. The court will include a statement in the divorce decree document that the spouse chooses to now have their name as their legal name once again.

In some cases, however, when the decree is being issued and the spouse has the choice to legally revert back to their maiden name, they may decide not to. They may decide to continue to legally use their married name. There are a number of reasons why a spouse may make this decision, including:

When dividing assets in a divorce, most people think about the division of their current assets, such as money in bank accounts, investments, and real estate property. When they find out that their soon-to-be-ex may be entitled to a share of their retirement benefits, it can derail any future retirement plans they may have had.

Marital Assets

In most cases, the benefits that may fall under “marital assets” are those that were earned during the couple’s marriage. If the couple was only married a short time, the amount may not add up to much, but in situations where the couple was legally married for years, that division can have a significant impact on the amount of retirement benefits the person ends up with once their ex-spouse is awarded their share.

Qualified Domestic Relations Order

In order to ensure that retirement benefits are paid out after a divorce, the spouse who is awarded a portion of the benefits must file a Qualified Domestic Relations Order (QDRO) with the relevant employer or retirement system. This is a court order that requires the employer or retirement system to pay out the benefits to an alternative payee, that is, someone other than the worker or employee.

When a couple makes the decision to divorce, one of the many issues that needs to be determined is how the assets they have acquired throughout their marriage will be distributed between the two of them. The goal is to achieve an equitable distribution. While this may seem as if it would be simple enough, the reality in many divorces is that their process is anything but simple. There are a number of things a spouse may do, such as hide assets, sell assets without the other spouse’s knowledge or approval, or even engage in dissipation (wasting) of assets, all in an attempt to deprive the other spouse of their fair share of the marital estate.

Hiding Assets

In most states, including New York, a temporary restraining order may be placed on both parties at the beginning of a divorce proceeding, especially in a divorce that appears to be contentious or if there is suspicion that the other spouse may engage in unethical and possibly illegal acts. The order prevents either spouse from disposing of any marital assets in any way. Keep in mind, however, a temporary restraining order usually only applies to marital assets and property and not personal property.

It is against the law for a spouse to hide assets from the other and if the spouse is caught, they will have to make restitution to the other spouse. In some cases, the court may even hold the spouse in contempt of court and could even send the spouse to jail, although that is usually only done in extreme cases.

Financial issues are one of the most often cited reasons for disagreements and stress in a marriage. Unfortunately, it is also often the cause for the couple to file for divorce. Divorce can also be a driving factor in why an individual or couple makes the decision to file for bankruptcy. A couple who has made the decision to both divorce and file for bankruptcy may be unsure which legal process they should initiate first. A Rockland County bankruptcy attorney can help.

Filing for Bankruptcy Before Divorce

Last year, more than 650,000 individuals filed for bankruptcy. That was about a 10 percent decrease from the prior year. However, it is estimated that the number of filings will spike dramatically over the coming months as financial protections and assistance programs put in place due to the COVID-19 pandemic are lifted. Many people may find that filing for bankruptcy is their only option for relief and to obtain a fresh start.

A Chapter 7 bankruptcy basically eliminates the majority of a person’s debt. Chapter 13 bankruptcy provides an affordable payment plan for the individual to pay back their debt within a certain timeframe.