Legal Separation

Legal Separation versus Divorce

A  legal separation does not end your marriage.  You can live apart from one another and remain married and you can enter into an agreement to address the same issues you may be facing in a divorce. A legal separation is an option for those who may not want to get a divorce

With a legal separation you can enter into an agreement to address child custody, visitation, child support, spousal support, and division of all assets and debts.  By doing this, you can protect your interests until you make the decision for a divorce.  The legal separation agreement can also set forth your intentions on the issues that will be addressed in a divorce.

Legal Separation and Divorce Differences

There are several significant differences between a California legal separation and a California divorce.  The first is that the, unlike a divorce, the parties must agree to a California legal separation .  If one party does not agree, the California legal separation automatically becomes a divorce.  Secondly, there is no waiting period requirement.  Whereas a divorce takes six months to become finalized, a legal separation can happen immediately.  Lastly, there is no residency requirement for a California legal separation.  A spouse does not have to live in the state for six months before filing the action.  However, a California legal separation will not allow the spouses remarry – you cannot enter into a valid marriage unless you obtain a dissolution of your current marriage (divorce).

Advantages of a California Legal Separation

Although a legal separation and divorce have many things in common there are some advantages to separating rather than a divorcing.  Those advantages include:

• It gives you time to decide if you want to proceed with a divorce.
• You will maintain medical benefits.
• You can live separately and retain your marital status for religious beliefs.
• Military spouses can remain married to meet the 10-year requirement for additional benefits under the Uniformed Services Former Spouse Protection Act.
• You can continue your marriage to meet the minimum 10-year requirement to take advantage of your spouse’s social security benefits.

A legal separation can be converted into a  Dissolution of Marriage (divorce) and, the legal separation agreement can be converted into a divorce settlement agreement.

When to Consider a Legal Separation

You may want to consider a legal separation if you are experiencing any of the following:

• Arguments about issues that are never resolved.
• You and your spouse do not talk about or address marriage issues.
• You spouse has demonstrated signs of being untrustworthy or not truthful.
• Your spouse refused to help you support the children.
• You want to establish a visitation schedule for your spouse to visit the children.
• You are not working and need support from your spouse.
• You want to address the financial responsibilities that you and your spouse are facing.
• You need health insurance and are not sure about coverage.
• Your spouse has the children interacting with a new lover.

When a Legal Separation is Most Often Used

A legal separation is most often used most often in the following circumstances:

• When divorce is against a spouse’s religious beliefs and neither party plans on remarrying.
• The parties need to remain married for an additional period of time in order for one spouse to be eligible to claim an interest in the other’s Social Security benefits.
• One spouse has significant medical issues which prevents him or her from obtaining private medical insurance.
• Neither spouse has lived in the state long enough to file for divorce.

Legal Separation Process

A legal separation in California begins with the filing a lawsuit in family court.  A California legal separation is much like a divorce proceeding in that the court will address the following issues:

1. The community interest.
2. Each parties’ separate property interests.
3. Child custody and visitation.
4. The amount of child support and spousal support to be paid by each party.
5. Which party should pay what debts.

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For more information on legal separation and divorce, click on one of the following links:

Divorce

Divorce Process

Military Divorce

Domestic Violence Laws