What is legal separation and what does it mean for your family and your assets? Why do some people choose to go the route of legal separation instead of divorce, and how is it different from divorce?
Legal separation may be appropriate for couples who no longer want to live together, but who also don’t want or aren’t yet ready to end the marriage. But if two people no longer want to live together, why not just file for divorce?
Some people may want time apart in order to attempt to repair the marriage while at the same time having a firm, legally binding agreement in place with respect to child support, child custody and visitation, spousal support, and the disposition of community assets. Others may have religious reasons where divorce is forbidden. There are also benefits that may be maintained during a legal separation, which would otherwise be lost in the event of a divorce.
- What Are The Differences Between Legal Separation And Divorce?
- Does It Matter When We Separated?
- Can I Convert My Separation Into A Divorce?
- Can I End My Legal Separation?
The Differences Between Legal Separation And Divorce
First, you will still be married. This means you will continue to be entitled to the benefits that come with marriage including insurance, tax, and Social Security benefits. Of course, since you are still married, you will not be able to remarry until you have filed for and subsequently been granted a divorce. Unlike divorce, which has a 6-month waiting period, a legal separation is immediately effective once a judge has granted your request.
Also, both parties must agree to the legal separation. For example, if you want to legally separate from your spouse, but your spouse will not consent, then a judge cannot grant your request. However, if your spouse fails to respond to your petition for legal separation, it is possible for the Court to still grant your request by default. Also, you (or your spouse) have the right to respond to a petition for legal separation by petitioning the court for dissolution. The matter would then go forward as a divorce proceeding.
Further, you don’t have to have lived in California for 6 months, which is the general residency requirement to be eligible for divorce in this state. All of that said, there are more similarities between legal separation and divorce than there are differences. Both require financial disclosures, arrangements for child and spousal support, child custody and visitation, as well as the division of assets according to the same rules and procedures similarly required in a divorce.
Last, but certainly not least, to be granted legal separation you have to petition the Court for it (same as divorce). It doesn’t matter if you have been living apart for years, you will not be considered legally separated without a court order. In other words, there is no invisible clock ticking once you and your spouse have decided to separate that will one day grant you the status of being legally separated.
Why It Matters When You Separate
The short answer to this question is yes, it can matter. Sometimes the approximate date a couple separates may only be a reference point for lawyers and judges. However, the date of separation can be hotly litigated because exactly when a couple separates can have far reaching implications involving important matters, which may include custody and visitation, child support, and spousal support. So as you can see, the date of separation can mean little to the outcome of your case, or it could end up being one of the most contentious aspects of it.
Converting Your Separation Into A Divorce
Yes. At any point during the process including after your request for legal separation is granted, you can convert to divorce. But when you decide to do this is important. If you have filed (petitioned) for a legal separation, but your spouse has not yet responded to your petition, then it is possible to simply amend your original petition. You will likely need no further disclosures and the matter will proceed as a divorce. On the other hand, if your spouse has responded to your petition, you will have to ask the court’s approval to convert to divorce. Finally, if your petition for legal separation has been granted, then you will need to start all over again. That is, you will have to file a new petition for dissolution, provide new disclosures, pay a new filing fee, and so forth.
Can I End My Legal Separation?
Yes, at any time. All that is required is a request for the legal separation to be dismissed. Just know that should things not work out, once your request for dismissal is granted, you will have to start all over again if you change your mind.
As you can see, legal separation can serve many purposes and has many functions. As always, the facts of your case can affect just how simple or complex a legal separation or divorce can be. Always keep in mind that your situation will have similarities to other cases, it is at the same time unique to you and you circumstances.
This page is provided for informational purposes only. It does not constitute legal advice for your specific matter nor does it establish the existence of an attorney-client relationship.