Separate Maintenance v Divorce - What's the difference?

Let’s say you like your spouse, but you don’t “like them” like them.  You don’t necessarily want to divorce him but you sure as heck don’t want to be completely committed to him either.   If this is the case, you may want to file a “separate maintenance” action.  The most common reasons that people choose a separate maintenance action are because they have very strong religious beliefs against an actual divorce, or that they don’t want to lose the health care insurance that their spouse provides, most likely through their employer. 

You see, once a couple is divorced, they are no longer eligible for health care insurance through their former spouse’s employer unless it’s through COBRA.  COBRA is ridiculously expensive and can only be used for a maximum of 36 months.  However, a lot of companies are now treating separate maintenance actions the same as a divorce – just like having a baby is a qualifying event to change coverage (albeit a much happier one), separate maintenance actions also set off that alarm for HR to make changes to qualifying dependents on the employee’s health insurance policy.  For example, my hubby’s employer would kick me off his policy if we were “legally separated,” which is what a separate maintenance action would be considered.

To file for separate maintenance, you’ve got to follow the same rules as if you were filing for divorce.  In turn, the court can divide your property, award assets, distribute debts, order support payments and award custody and parenting time rights.  A Judgment of Separate Maintenance is filed instead of a Judgment of Divorce.  It’s still one stop shopping except that you’re not actually divorced.  Don’t think you can go out and get remarried the next day.

There is a catch – if your spouse wants to be divorced, he or she can file a counterclaim for divorce and there isn’t really anything you can do about it.  You cannot force someone to stay married to you (just like you can’t force your spouse to quit watching ESPN 24/7 – with all those universal remotes, no matter how many times you hide or throw them away he can always buy another one).  So if your hubby files a counterclaim for divorce, your separate maintenance action is out the window unless he changes his mind (unlikely, especially if you actually have been throwing out the remotes).

Separate maintenance actions are nowhere near as common as divorce actions, primarily because if you’re going to carry on like you are divorced, you might as well be.  Besides, if you find your new Prince Charming, you want to truly be single so you can tie that knot again!