What Is Legal Separation in California?

There is a pervasive misconception that a legal separation is the first step in getting divorced. While legal separation can be part of the divorce process, it is not a requirement for dissolving a marriage.

What Is A Legal Separation?

A legal separation creates a legal agreement that is enforceable and recognized by the courts. It will provide the most protection if the relationship is unsalvageable and divorce is pursued.

A legal separation is a formal and legally binding agreement that divides debt, assets, and property between spouses; it will also address the issues of support and custody. Creating a separation agreement is similar to getting divorced, with the main difference being after a legal separation is finalized, you are still married.

The courts will usually assume that you were satisfied with the terms of the separation and therefore will apply the same arrangement to your divorce. Because a legal separation will lay the foundation for a future divorce, it is imperative to protect your rights from the beginning.

Legal Separation Versus Divorce

While divorce is concrete and final, and though they often look similar, legal separation is less decisive. In most ways, the legal separation ends a marriage. You live apart, decide on custody, split your belongings, and all the rest. 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.

Related Reading: Should I Hire a Divorce Lawyer?

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? There are scenarios where divorce isn’t the best option for one reason or another.

Preparation for Divorce

Though divorce is by far the most common option, there are reasons to choose legal separation instead. For some couples, it serves as a means to an end. It can function as a step towards an eventual divorce in the future. You can take the time to figure out the specifics of the impending divorce, like financial matters and custody concerns.

Hopes of Reconciliation

They can also provide couples the space to deal with issues in their marriage. Living separate lives for a time may give the people involved the chance to work on things they need to work on. In some cases, the ultimate goal is to reconcile, not divorce. In some cases, 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 sometimes stay married for the sake of children—it can be less stressful and easier than explaining what divorce means to the kids.

Finances

One of the biggest reasons couples go the legal separation route is because of finances. Depending on the circumstances, it can offer the benefits of both marriage and divorce.

Filing taxes jointly save some couples money, though it depends on the circumstances. That said, there are also hurdles to deal with when filing taxes following a legal separation, but it is possible on occasion. Make sure to consult a tax professional ahead of time if you hope to go this way.

Retirement benefits don’t usually take effect until a marriage hits 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.

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

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

Divorce Or Legal Separation?

Some couples choose legal separation over divorce thinking it will save money in 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 then divorce down the road, you have to pay for that, too. You may wind up paying twice.

The big question of the day is whether or not 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 the ramifications. Take the time to look at all the variables, honestly examine your circumstances, and come to an informed decision.

Other Types Of Separation

There are several types of separations and these variations have contributed to some of the confusion surrounding 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 consequences and benefits of a divorce.

They do not require the involvement of the courts, but it is important to keep in mind that moving out or providing financial support during a trial separation can establish a precedent of support that the courts will consider if a divorce is pursued.

Living Apart

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

If you are considering moving out, it is in your best interest to consult with an attorney before you move. An experienced attorney will educate you on your options and how to protect your rights while transitioning 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 debt your spouse incurs and they may be entitled to assets you acquire. Failing to file official documentation can create expensive complications down the road.

A legal separation creates a legal agreement that is enforceable and recognized by the courts. It will provide the most protection if the relationship is unsalvageable and divorce is pursued.

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Related Reading: Date Of Separation and Divorce

FL-100 – This is the form to begin the legal separation process.