California recognizes legal separation as an alternative to divorce. This option is not as permanent as divorce, but it can help provide some clarification of legal rights while spouses contemplate whether they will stay together. Knowing the laws associated with legal separation in California can help spouses determine if this is the best option for them.

CONSENT

An important characteristic of legal separation in California is that both spouses have to agree to it. This is different than the requirement for divorce where one spouse can get divorced even if the other does not want to divorce. Therefore, if one spouse wants a legal separation and the other spouse wants a divorce, the divorce process will commence.

REASONS FOR LEGAL SEPARATION

The same legal grounds for divorce are used for legal separation. This is most commonly due to irreconcilable differences. Filing for a legal separation or for a divorce have the potential to lead to the same outcome.

Couples may decide to get a separation for a number of reasons. For example, they may be part of a religion that does not approve of divorce. They may want physical separation but maintain certain rights and benefits of keeping the marriage intact, such as maintaining health insurance or a preferred tax status. Military benefits may be another reason for the spouses to remain legally married but separated.

A personal reason why a couple may decide to get a legal separation over a divorce is to see what it will feel like separated to see if they prefer to make the arrangement more permanent. In some cases, separation can provide clarity and even lead to reconciliation and a renewed effort in the marriage.

Because there are residency requirements to get a divorce in California, some spouses may start by getting a legal separation and then later petitioning the court for divorce.

LEGAL PROCESS

The process to get a legal separation commences in the same manner as a divorce by one of the parties filing a petition for the purpose of legally separating. A legal separation uses the same types of legal forms as the forms necessary to initiate a divorce. However, the parties must agree to get a legal separation. However, if they do not agree to the terms of the separation, the court can resolve issues related to custody, visitation, property, debt and support by applying the same standards. After the court orders a legal separation, either party can freely file an action to dissolve the marriage. In many cases, the separation agreement provides the basis for a divorce agreement. Additionally, the separation agreement may be converted into the divorce agreement or decree.

PROVISIONS OF A LEGAL SEPARATION AGREEMENT

A legal separation agreement may include a number of important provisions. These provisions are different in each case. Some common provisions include:

Custody

The legal separation agreement may declare that the parents will share joint custody of their children, or they may agree to a separate arrangement. For example, they may agree that they share legal custody to make decisions for their children but for one parent to primarily take care of the children. They may have provisions regarding the other parent’s ability to visit with the children and other issues in a parenting plan.

Child Support

The legal separation agreement may also contain provisions related to child support. A legal separation can last for years, so an agreed-upon amount of child support can provide clarity during this time of transition. Support is typically based on the child support tables and the income-share model.

Property Division

The parties may agree to how their assets and debts are divided. In other cases, they may be able to reach an agreement through negotiations or with the assistance of a mediator. In the absence of an agreement, the court can decide property issues. There may be hearings in which the value of property and the classification of property is discussed by the parties, expert witnesses and other individuals. The separation agreement may include provisions regarding the payment of a mortgage on a home, utilities, legal expenses, health care expenses, living expenses and taxes. Additionally, there may be provisions as to how certain property should be managed during the separation, such as selling property or collecting rents on it. Additionally, the agreement may state how certain property will be treated after the legal separation is finalized.

Spousal Support

The parties may also agree to spousal support matters. The agreement may be based on the period of separation. However, in some situations, this agreement may provide a basis for a later award of spousal support after a divorce.

PROPERTY RIGHTS AND SEPARATION

The date of separation can be important in a subsequent divorce filling. This is the point in time when the property rights are determined. After a judgment of legal separation is made, the parties do not acquire additional community property rights or owe their spouse any additional duty to provide care or support to the other. The date of separation can determine whether property is treated as separate property or community property.

DIFFERENCES BETWEEN LEGAL SEPARATION AND DIVORCE

There are a number of differences between legal separation and divorce. Some of these include:

  • Inability to remarry – Spouses who are legally separated are still legally married. Therefore, they cannot remarry. In divorce, the parties are free to remarry.
  • Residency requirement – In order for a couple to get divorced in California, one of the spouses must have resided in the state for a minimum of six months and in the county where it is filed for a minimum of three months. Couples getting a legal separation do not need to meet this residency requirement.
  • Finality – Divorce is final. It finalizes the termination of the marriage. However, a legal separation is not final in nature. This difference can be important in certain situations when the marital bonds need to be kept in place, such as when a spouse’s immigration status is based on marriage or when health care insurance needs to be retained.
  • Effective date – In a legal separation, the separation becomes immediately effective. In divorce, there may be a long delay between the divorce and its effective date.
  • Marital status – The main difference between legal separation and divorce is that the couple is still legally married when separated but not when divorced. The court is not asked to terminate the matrimonial bonds in a legal separation.

OTHER LEGAL OPTIONS

Individuals who are considering a legal separation may consider other legal options. For example, they may consider a trial separation. This option is not legal in nature, but it may provide some of the clarity that the couple needs. In this type of option, the parties do not have the court adjudicate their marital rights. Another option is for the parties to enter into an agreement and submit it for the court’s approval. This makes the process faster and easier. The parties may be able to reach this outcome on their own or with the assistance of a professional third-party neutral. Another option for the parties is to go through the process of collaborative divorce. This option focuses on helping both spouses leave the marriage in the best manner possible for both parties. A California family law attorney can help a spouse questioning the future of his or her relationship determine his or her legal rights and options.