What Is Legal Separation in California?

Key Takeaways:

• Legal separation is a legally binding agreement that divides spouses’ debts, assets, and property while they technically remain married.
• There are scenarios where divorce isn’t the best option.
• Couples may opt for this route when there may be religious, moral, or ethical reasons against divorce.
• Other common reasons include hopes of reconciliation, avoiding the affect divorce can have on your finances, and health insurance.
• Legal separations are not a required step in a divorce.

Divorce is the most common way to end a marital relationship. However, it’s not the only way. Legal separation offers another option. In certain situations, it may be the best way to move forward, but there’s also a lot to consider.

What Is Legal Separation?

As the name suggests, it is a formal, legally binding agreement that divides spouses’ debts, assets, and property. It also addresses issues of support and custody. Creating a separation agreement is similar to getting divorced. The main difference, however, is that after a legal separation is finalized, you remain married.

The courts usually assume that you were satisfied with the terms of the separation and therefore often apply the same arrangement if you ultimately divorce down the road. Because a legal separation can lay the foundation for a future divorce, it’s imperative to protect your rights from the beginning.

Related Reading: Date Of Separation and Divorce

Legal Separation Versus Divorce

While divorce is concrete and final, and though they often look similar in practice, legal separation is less decisive.

In most ways, legal separation ends a marriage. You live apart, decide on custody, split your belongings, and all the rest. As we said, the key difference is that you technically remain married.

In a divorce, exes are free to go about their lives unfettered by marriage. You can move, work, date, and remarry without fear of legal complications. With a separation, though, that lingering connection remains.

Reasons To Choose Legal Separation Over Divorce

If your marriage is finished and you want out, why not simply rip the Band-Aid off and get it over with? That’s the biggest question when deciding whether to divorce or pursue legal separation.

Every situation is different, and there are scenarios where divorce isn’t the best option for one reason or another. Though divorce is by far the most common option, there are reasons to choose legal separation instead.

Preparation for Divorce

For some couples, separation serves as a means to an end. It can be a step toward an eventual divorce. You can take time to work through the specifics of the impending divorce, such as financial matters and custody concerns.

Hopes of Reconciliation

This scenario can also give couples the space to address issues in their marriage. Living separate lives for a time may provide the people involved a chance to work on what they need to. In some cases, the ultimate goal is to reconcile, not divorce. In others, people love each other very much, but simply can’t live together.

Religious, Moral, or Ethical Reasons

Some couples are unwilling or unable to divorce for religious, moral, or ethical reasons. People also stay married for the sake of children—it can be less stressful and more manageable than explaining what divorce means to the kids.

Finances

One of the biggest reasons couples choose legal separation is finances. Depending on the circumstances, it offers the benefits of both marriage and divorce.

Filing taxes jointly saves some couples money, though it depends on the specifics. That said, there are hurdles to overcome when filing taxes after a legal separation, but it is possible on occasion. Make sure to consult a tax professional in advance if you plan to go this route.

Retirement benefits don’t usually take effect until a marriage reaches a certain length. For example, Social Security kicks in at the ten-year mark. You can then collect based on your former spouse’s work history. If they’re close, couples may try to leg it out and hit this milestone.

Military benefits, pensions, and other retirement allowances often have similar rules in place. A future windfall offers a strong reason to remain married.

Healthcare

Healthcare is another potential reason to stay hitched. Or at least it’s a factor some couples weigh. For the most part, employer-supported insurance doesn’t cover former spouses, though some do in legal separation. The keyword here is “some.”

Again, like taxes, there are potential hazards. Many policies treat divorce and legal separation the same way, so it’s essential to examine the specifics of your plan. But for chronic illnesses that require ongoing care, continuing health coverage can be an enticing option.

Divorce Or Legal Separation?

Some couples choose legal separation over divorce, thinking it will save money on legal fees. It may, but it also may not. Especially if you need lawyers involved, the cost for both can be nearly identical. If not, a legal separation may prove a cheaper option.

But there are still expenses associated with the process, like paperwork and filing costs. One thing couples often don’t consider is that, if you separate only to divorce in the future, you have to pay for that, too. In effect, you may wind up paying twice.

The big question is whether legal separation is right for you and your situation. It’s a complicated choice with no one-size-fits-all answer. What’s right for one couple won’t necessarily be right for you. But for some couples, it truly is the best option.

Both carry long-lasting consequences, and whichever road you choose, it’s vital to explore and understand the ramifications. Take the time to review all the variables, honestly assess your circumstances, and make an informed decision.

Related Reading: How Are Assets Split In A Divorce In California?

Other Types Of Separation

Several types of separation exist, and these variations have contributed to confusion about legal separation. These include:

Trial Separation

Many couples in troubled relationships will take time out from the relationship to determine if ending the relationship is the best course of action. Trial separations can provide space to evaluate the potential benefits and consequences of divorce.

These don’t require the involvement of the courts, but it is essential to keep in mind that moving out or providing financial support during a trial separation can establish a precedent of support that the courts often consider if you do pursue divorce.

Living Apart

As the name implies, the couple ceases living together. Some couples will continue working on their relationship after moving out, while others will combine a trial separation with living apart.

If you are considering moving out, it is in your best interest to consult an attorney before you do so. An experienced attorney will explain your options and how to protect your rights as you transition out of cohabitation.

Permanent Separation

Permanent separation is a legal separation that indicates that there is no chance for reconciliation. If you pursue a permanent separation, it is advised that you file the paperwork to make the end of the relationship official.

If you don’t file for permanent separation, legal separation, or a divorce, you can still be held liable for debts your spouse incurs, and they may be entitled to assets you acquire. Failing to file official documentation can lead to costly complications down the road.

Related Reading: Divorce Discovery Tools