The first thing to know when discussing this is that formal Legal Separation is a rare goal for a client to try to achieve, but it is helpful in some limited circumstances. Legal separation is designed to be a permanent separation (more about durability later) and is suitable for couples who, for example, have religious beliefs that don’t allow divorce, or want the tax benefits or insurance benefits often available when staying married. There are many things to consider when contemplating legal separation vs. a divorce.
THE PROCESS OF OBTAINING A LEGAL SEPARATION
In most respects, a legal separation is functionally no different than a divorce in the State of California. The process to obtain one is the same: a petition is filed with the County Superior Court; there’s a period of information gathering and sharing; and then a judge of that court issues his ruling, called a “legal separation judgment.” That judgment covers much of the same territory that a divorce decree would cover, including the division of assets, assignment of debt responsibility, spousal support, child care, and custody, etc.
Legal separations and divorces use the identical petition form to initiate their proceedings (Form FL-100); the petitioning spouse simply checks the box labeled “Legal Separation” instead of “Dissolution (Divorce).” The cost to file the petition is also the same ($435), and the overall processing time, if the case is relatively straightforward and the parties are cooperative, is between six and nine months – roughly the same as the minimum for a full divorce.
The only real difference on the process side between a legal separation and a divorce is the residency requirements to file their initial petitions. A divorce petition requires the petitioner to have lived in the county of filing for a minimum of three months, and in the State of California for a minimum of six months. There is no such residency requirement for a legal separation petition. And since it is possible to amend the filing from one to the other, a petitioner may first file for a legal separation and then change it to a full divorce petition once they pass the residency threshold.
THE DIFFERENCES BETWEEN DIVORCE AND LEGAL SEPARATION
To be clear, the main difference between a legal separation and a divorce is the status of the marriage itself when it is all over. A divorce terminates the marriage altogether. In a legal separation, the marriage itself is still alive, and thus the spouses are still legally married to each other. For some people, this option holds substantial advantages over a full divorce. Many people have religious or social reasons why getting divorced is not an option; perhaps their consciences won’t let them. Many others question the effect that a divorce would have on their children, and so they choose to maintain their legally married status for the children’s sake. In both of those cases, among other reasons, a legal separation is also more appealing because it can be more easily reversed with a motion to vacate the judgment of legal separation.
For some, choosing legal separation over divorce has financial benefits to remaining married. Separated couples can still file their taxes as “married filing jointly,” which usually carries higher thresholds for tax breaks and an overall lower tax rate than filing separately or as single people. Social Security and many other pension plan benefits earned by one spouse can still be received by the other. Some (though not all) health insurance plans permit continued coverage for spouses even if they are separated from each other. And, finally, since they are still technically married to each other, each spouse is the automatic next-of-kin of the other spouse’s estate if they should pass away.
There is also a big financial drawback to legal separation. Because California is a community property state, both spouses share equal ownership of everything – both assets and debts. Even when legally separated, spouses still carry responsibility for their partner’s debts, including debts incurred after the separation. Since money is probably one of the hot button issues that drove you apart, remaining financially entangled in this manner is likely unappealing.
Divorce, which dissolves a marriage completely, also dissolves all those potential financial benefits of remaining married. However, remaining legally married while not having any truly meaningful relationship with the other spouse also puts significant limitations on them. The most obvious limitation is the inability to get married again to someone else. If either spouse wants to do this, they must first finalize their divorce. That process, though perhaps practically easier if their legal separation has been relatively smooth, still requires a second round of time and expense which would have been avoided if they had simply filed for a divorce from the start.
The next-of-kin relationship has another side to it as well: If a spouse becomes incapacitated and cannot make their own financial or medical decisions, it is their spouse – the one from whom they have been separated – who must step in to make those decisions for them (unless they have specifically given powers of attorney to someone else). Such a prospect may be disconcerting unless a sufficient level of trust and friendship has been maintained post-separation.
Which is right for me?
Since no two marriages are alike, it is impossible to predict which answer is the best for all situations. However, if you are facing challenges in your marriage and you are not sure how to best resolve them, you may want to consider what some call a “trial separation.” In such a trial separation, you and your spouse will be physically apart from each other for a limited time, which will give you both some breathing room to process your challenges and hopefully resolve them. A separation of this sort requires no court involvement; it is purely up to you and your spouse how long it will last and what it will look like.
If a separation of this type needs to be elongated, you and your spouse can enter into a “separation agreement,” which is a legally-binding contract that formally delegates financial and childcare responsibilities as needed. Here, too, no court involvement is required. However, competent legal counsel from a family law attorney must be sought to ensure the separation agreement is legally valid and covers all the bases.
Theoretically, you can live with such a separation agreement indefinitely. And, if you or your spouse choose to move ahead with a legal separation or divorce, that separation agreement can serve as the foundation of the resulting separation judgment or divorce decree.
We can help.
The decision of whether to divorce or choose a form of separation is not a simple one. Physical separation is often a factor that helps determine the “date of separation” that is going to be utilized for many purposes in the divorce, although it is not determinative. The legal test for date of separation is that a complete and final break in the marital relationship has occurred and the spouse has both expressed his or her intent to end the marriage and engaged in conduct consistent with such intent. Date of separation can be a huge factor in your divorce, especially when it comes to finances. From a property perspective, the established date can mean the difference between an asset being considered community or separate. The date of separation can also determine whether a marriage is considered long or short term, which can have a tremendous impact on support payments. Because of its importance, the date that will be utilized as the ‘actual’ date of separation is often one of the most bitterly fought battles in a divorce. If you are thinking about a Legal Separation or some form of a trial separation, it is time to be thinking through these issues with knowledgeable counsel as your decisions can have significant effects on any later divorce that may occur. What you say and do about a separation can have wide ranging impacts on financial issues of any later divorce. At the family law firm of Silva & Associates, we have years of experience in these matters and can provide you the counsel you need in those decisions. No matter which direction you choose, we can help ensure that nothing is left to chance, that the process is as smooth as possible and that the result is satisfactory to all parties. We encourage you to reach out to us today and let us help walk you through your options for the best possible outcome.