Legal separation is the separation of spouses from each other without a dissolution of the marriage. A Judgment of Legal Separation frequently terminates the parties’ property rights, but does not sever the marital relationship. In other words, the parties remain “married” and are unable to enter into a valid subsequent marriage.
Legal Separation vs. Physical Separation
Legal separation, sometimes called a “limited divorce,” is substantially different from the concept of the “date of separation” or “physical separation.” Often times during divorce proceedings one of the parties will move out of the marital home and into replacement housing. Here, the parties have separated, but they are not legally separated.
Physical separation, or the mere cessation of cohabitation between spouses, does not create the distinct status of “legal separation.” But it is an important point in the process, because the date of separation is that date under California law after which the income and property acquired by either spouse are no longer community but rather each spouse’s separate property, and the debts incurred by either spouse are also no longer community but each spouse’s separate obligation.
Residency And Other Issues
Unlike a dissolution action, there is no residency requirement for a party to file an action for legal leparation. In fact, parties often will file a Petition for Legal Separation to begin the dissolution proceedings, and then amend the Petition to request a dissolution once residency has been established several months later. This permits the court to get a head start on the issues, and can help the parties start the clock ticking sooner on the six-month waiting period, because an amended Petition can relate back to and be effective as of the date the original Petition was filed and served.
Other than marital status, the court in a legal separation case can decide the same issues as in a divorce case, such as issues of child custody and visitation, child and spousal support, division of community property and debt, the need for restraining orders and allocation of attorney fees and costs.
There are many reasons a couple may choose legal separation over divorce, among them religious beliefs, taxes and medical insurance benefits, but most of the time couples choose dissolution. However, if you are in a lengthy marriage, are elderly or approaching retirement age, or have significant health considerations, you should at least discuss with us the option of a legal separation as opposed to a divorce.
Contact us or call (925) 465-2500 or (707) 398-6008 for more information or to schedule an initial consultation at Sparks Family Law, Inc. with attorney Gary D. Sparks.