Legal Separation

In California, a legal separation doesn’t end a marriage or domestic partnership. Instead, it results in a court determining the rights and responsibilities of spouses who want to live apart….. However, unlike a dissolution, there are no residency requirements for a legal separation, nor are there any time constraints on how quickly the legal separation can go into effect once the Judgment has been ordered by the court.

Why would you get a legal separation instead of a divorce?

People choose legal separation instead of divorce because of religious beliefs, financial protection, the need for one spouse to keep the health insurance benefits that would be lost with a divorce (much less common now with the new healthcare restrictions that have been implemented), or a simple aversion to divorcing despite the desire to live separate from one another. A legal separation also allows you and your spouse to continue filing taxes jointly, which can lead to some additional tax benefits.

3 Different Types of Separation:

1. Trial Separation

If you and your spouse need a break from the relationship, you might choose to live apart while you decide between divorce or reconciliation. While you’re separated, the same legal rules apply as when you are married, in terms of ownership of property. For example, money you earn and property you buy are likely to still be considered jointly owned by you and your spouse (i.e. community property), depending on your state’s rules about property ownership.

 2. Permanent Separation:

When you live apart from your spouse without intending to reconcile but you are not divorced, you are considered permanently separated. In some states, living apart can change property rights between spouses—if you don’t intend to get back together, then assets and debts acquired during the separation belong only to the spouse who acquires them. Once you are permanently separated, you are no longer responsible for any debts that your spouse incurs, etc. Similarly, you’re no longer entitled to any share of property or income that your spouse acquires or earns. Because it can significantly affect how your property and money are divided, the date of permanent separation is sometimes hotly contested in a divorce.

For example, if your spouse left in the heat of the moment and spent a month sleeping on a friend’s couch, but you didn’t discuss divorce until the month had passed, and neither of you intended to divorce before then, the date of separation is somewhat questionable. If during that month your spouse received a big bonus at work, who it belongs to can also be arguable.

Also, if you move out of the house and don’t expect any long-term reconciliation with your spouse, there may be consequences to going out or spending the night together just for “old times’ sake.” If you do briefly reconcile, you risk changing the date of separation and becoming responsible for your spouse’s financial actions during a period when you thought you were responsible only for yourself.

3. Legal Separation:

Being legally separated is a different legal status from being divorced or married—you’re no longer married, but you’re not divorced either, and you can’t remarry. But the court’s order granting the legal separation includes orders about property division, spousal support, and child custody and support, just as a divorce would.

People typically choose legal separation instead of divorce because of the reasons mentioned above. Some people live very happily in a state of legal separation for many years. (*If you’re considering a legal separation instead of divorce so that you can keep insurance benefits, check the insurance plan before making the decision. Some consider a legal separation the same as a divorce for purposes of terminating health benefits.)

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