What is Legal Separation in California

misconception that a legal separation is first step in getting divorceThere is a common myth that a legal separation – is the first step in the process of a divorce. Legal Separation can precede an actual “dissolution of marriage,” but in those cases there was usually a religious, financial or benefits-related purpose for obtaining a “legal separation” and then months, years or decades later the couple went ahead and pulled the trigger on a final divorce. Upshot? A legal separation not a normal FIRST STEP or requirement for getting a divorce (dissolving a marriage).

Legal Separations: Religious, Financial & Other Benefits

Legal separations are often elected by a couple that is considering divorce – or wants to separate or live apart, but CHOOSE not to legally divorce for a variety of practical reasons. Legal Separation can be used to allow a spouse to retain medical benefits; can be used by the primary provider to protect his or her business and financial interests during a trial separation; and are commonly used by those with strong religious beliefs.

EXAMPLE – John and Mary want to live separate lives and agree the marriage is “over.” John is a 30 year executive with a large corporation and has an amazing cadillac health insurance plan that literally saved Mary’s life when breast cancer was diagnosed and treated. If they were to divorce, Mary would be excluded from John’s health insurance and a replacement policy, even with new Federal legislation, would be prohibitively expensive. John and Mary seek a Legal Separation that will divide property, specify child visitation and other issues, but will enable Mary to continue using the health insurance she has come to depend on.

All the Legal Steps & Agreements as in an Actual Divorce

A legal separation process is just like that of an actual divorce. A legal separation results in a legally binding settlement that includes property division as well as issues of support and custody. Just like in a “regular divorce,” you will sit down and decide who gets what. The division of real estate and other assets, debt, will be worked out and agreed to. That which cannot be agreed to, will be decided —just like in a dissolution of marriage— by a judge. A legal separation will address spousal and child support if applicable, and child custody and visitation for minors under 18 years of age THE PRIMARY DIFFERENCE between creating a separation agreement vs. getting divorced, is that after a legal separation is finalized — you are still legally married.

Because legal separations are governed by the same law and procedures as a dissolution of marriage, in many courts the separation agreement is thought to set a precedent that will often be the blueprint for your divorce should you ever ‘pull the trigger’ and choose to legally divorce at some future date. Family court judges assume that you were satisfied with the terms of the separation agreement and will want to use that settlement agreement as a road map to rapidly grant an actual divorce judgment. Because of the precedent-setting tendencies that legal separation agreements create, it is in your best interest to make good decisions (as if you were seeking a divorce) while addressing your legal separation to protect your rights.

Sources of Confusion Regarding the TERM: Legal Separation

When talking with clients about their confusion between “legal separation” and “dissolution of marriage” (divorce), it becomes clear that the confusion is a result of various terms thrown around –over generations of time– by couples who are having marriage problems.

Because of problems, couples will try a number of marital experiments including:

Living Apart

Couples working on their relationship; some attending couple’s counseling; some just ‘winging it’ by the seat of their pants, will decide to live apart as a “trial separation.” If you are one of these people who is considering moving out of the home where you currently cohabitate as a couple, it is in your best interest to consult with an attorney before you actually move out. You need to be advised of the options you have and risks you take. An experienced family law attorney can educate you on how to protect your rights as you attempt living apart.

Trial Separation

Couples who are having relationships issues will sometimes want to “take a time out” from the relationship to see what living apart is like: putting a toe in shallow end of the pool… Trial separations are said, by some counselors, to provide each spouse the time and space to “test-drive” the lifestyle, feelings, and consequences of being “single” for a period of time without diving into the deep end of the pool which would involve lawyers, division of property, agreements, courts, social stigma from family, friends and co-workers that an actual divorce process entails. We get it! While, trial separations, do not involve lawyers and the courts, it is important to me mindful that moving out or providing financial support during a “trial separation” can actually establish a “precedent of support” that the judge might use as a prior-agreement should you ever purse an actual legal divorce. Again. Make an appointment to sit down with a lawyer first!

Permanent Separation

Couples who claim to make a “permanent separation” are telling the world that there is NO chance for their relationship; and there is NO chance for reconciliation. Choosing what is culturally referred to as a permanent separation is legally foolish. Just bite the bullet and get a Legal Separation (if you have religious beliefs, or there is a ‘benefits’ issue) or get a legitimate, legal divorce. GET IT BEHIND YOU. Legally. We are called on far too often to attempt to clean up the car wrecks that are “permanent separations.” They can be disastrous. If you choose to NOT file for legal separation or divorce, you can be held liable for debt your spouse incurs; and if that’s not bad enough, your spouse may be entitled to half the assets you continue to accumulate and acquire.

Legal Separation

Legal Separation is recognized by the State of California as a legal agreement that is enforceable and recognized by the California courts. A legal separation provides the best possible protection in the “testing and experimentation of living separate lives,” and then, should your relationship further deteriorate, you can easily and swiftly purse a regular divorce without legal pitfalls — no matter if years or decades pass before doing so.

Legal Separation Instead of a Divorce?

Reasons For a Legal Separation

Many people wonder – when presented Legal Separation – WHY consider a “legal separation?” The process is the same as a divorce. What would be the benefit?

The 6-month waiting period doesn’t apply – for a Legal Separation; nor do the other 2 requirements: (1) you DO NOT have to live in California for six months or (2) your county for three months before filing.

Legal Separation: Well as already discussed, there are legitimate logical reasons… You may have religious objections to becoming divorced, but choose to live apart and do a division of property, work out child support, spousal support and child custody / visitation arrangements — JUST SHORT of an actual LEGAL divorce. It may be that one spouse has terrific health insurance, as our example at the top of the page, that the other spouse can only access if they are a married couple. Sometimes, if your are extremely affluent or wealthy, there are tax reasons for choosing a legal separation instead of a marital dissolution.

FACTS About a Legal Separation in California:

  • Couples sometimes prefer legal separation for religious reasons.
  • Couples sometimes prefer legal separation for financial reasons.
  • Couples sometimes prefer legal separation for financial or insurance benefits.
  • Couples that do not want to get divorced but want to live apart and decide on money, division of property, and parenting issues can use a legal separation.
  • Legal Separation does not end a marriage or domestic partnership.
  • You cannot marry or enter into a partnership with someone else if you are legally separated.
  • You do not need to meet California’s residency requirement to file for a legal separation.
  • Following a legal separation, you may able to file an amended petition to ask the judge for a divorce-after you meet the residency requirements.
  • Legal separation enables the parties to request court orders for child support, spousal support, partner support, custody & visitation, restraining orders for domestic violence, or any other court orders you can request in a regular a divorce case.

Nemiroff & Cohen – Protecting Your Rights – Reducing Your Stress!

To resolve all of these complex issues that are part of a Legal Separation, you need a qualified and experienced divorce lawyer on your side. Lauren Nemiroff and Gail Cohen are both Board-Certified Family Law Specialists with the experience that makes a difference for our clients. We have helped literally thousands of people in the San Fernando Valley successfully emerge from a divorce, even when the process appeared overwhelming at first. Divorce will not always be easy, but with us on your side, you’ll have the support you need to be confident going forward.

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