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How Does “Legal Separation” Differ From Divorce?

| Aug 19, 2020 | Separation |

This question is raised frequently in a Family Law practice, mostly because of a common misconception of what “separation” actually is.  The “date of separation” is a key element in any divorce case, and the use of the word “separation” in this sense is the root cause of the confusion with a Legal Separation.  The date of separation is simply the day that the “community” (i.e. the marriage) no longer exists.  But that date is not determined by any pronouncement by the court in a court order or Judgment.  It is simply the day upon which one of the two spouses decides that the marriage is irremediably broken, and then acts on that decision in some objectively verifiable way (like by filing a Petition for Dissolution of Marriage or Petition for Legal Separation, moving out of the house, or even just moving into the spare room).  Once that day arrives, the marriage is for all intents and purposes over, although the parties are still legally married and will be legally married until the Judgment of Dissolution of Marriage or Legal Separation is issued.  The date of separation does affect the characterization of property and income, though, which can be significant particularly in divorce cases that take years to resolve.  For instance, when the date of separation is determined, any acquisitions of property by either party after that date are no longer considered to be presumptively community purchases, as they would be if made during the marriage.  Similarly, all earnings from employment after that date will be considered separate property, and the other spouse will not be entitled to share in those earnings (except by proper support order).  All debts incurred by either spouse will also be considered separate debts if incurred after the date of separation.

So then what is the difference between the “date of separation” and a “Legal Separation?”  The date of separation is simply a reference point for the court to determine how long the marriage lasted and to decide issues of property characterization – it has no bearing on the actual status of the spouses as married or not married.  Legal Separation, however, is a formal court ordered status, and that formal status can only be brought about by a Judgment of Legal Separation.  It is not related to the date of separation in any real sense – it is simply the order of the court that the State of California views the spouses as officially separated, and has made all other orders in the case in line with that order.  Just like a divorce case, a Legal Separation will include appropriate property orders, child custody orders, child and spousal support orders, attorney’s fees orders, and any other ancillary orders necessary to resolve the spouses’ various disputes in the marriage.  But unlike divorce, after a Legal Separation, the former spouses cannot remarry – they are not divorced in the eyes of the State.  Further, if one spouse files a Petition for Legal Separation, the other spouse is entitled to respond with a Response and Request for Dissolution of Marriage, in which case the court will proceed as if the case is a divorce and not a Legal Separation.  Both parties must agree that the matter will proceed as a Legal Separation.

The reason some choose Legal Separation over divorce is to maintain health insurance benefits (upon Dissolution of Marriage, the insurers usually preclude former spouses from inclusion on the other spouse’s insurance policy), or because religious beliefs preclude divorce.  In all other respects, a Judgment of Legal Separation is identical to a Judgment of Dissolution of Marriage, and in my experience 99.9% of clients are better served by a Judgment of Dissolution than by a Judgment of Legal Separation.