Legal Separation, an Alternative to Divorce

January 12, 2010

Legal Separation, an Alternative to Divorce

Are you looking for another option besides divorce or an annulment of your marriage? Perhaps due to religious reasons, financial reasons or some other factor you and your spouse would like live apart and separate your finances but not end your marriage? In the State of California, you have the option of a legal separation.

Most people assume if they are not sure that whether they want a divorce, they should file for a legal separation – not true. A legal separation is not a trial separation and is not designed to give couples a time out if they are having problems.

One very common reason to seek a legal separation instead of dissolution (divorce) is to retain eligibility for medical insurance that would otherwise be lost by a termination of the marriage.

A legal separation proceeding is similar to any marriage termination proceeding in that a judgment of legal separation adjudicates support, custody/visitation and community property rights and obligations under the same standards and in the same manner as a divorce. It also establishes a means to separate your finances in the future.

A legal separation will not end your marriage nor will it absolve you of liabilities that were taken on by either party during the marriage. However, it will allow you and your spouse to live apart and start new lives. A court ordered legal separation will help you and your spouse define the parameters of child custody and visitation, child support, spousal support, and distribution of the property and liabilities of the marriage. All other court oversight available to divorcing couples are available to you and your spouse during your legal separation. Note that neither you nor your spouse can marry another person while this legal separation exists. You are both still legally married to one another.

There are several significant differences between a legal separation and a divorce. For instance, spouses must agree to a legal separation. If not, a legal separation automatically becomes a divorce. Second, there is no waiting period. In the state of California, it takes six months to become divorced. However, a legal separation can happen immediately. Finally, there is no residency requirement for a legal separation. A spouse does not have to live in the state for six months before filing the action. Most importantly, a legal separation will not allow the spouses to marry another.

A legal separation is not an appropriate lawsuit to file simply because a spouse is unsure about a divorce. If a spouse does not want a divorce, the filing of a legal separation almost always ends up in the other party requesting a divorce. If there is hope at all of reconciliation, it’s best not take legal action of any kind. Generally speaking, it is usually appropriate to file a legal separation only in a very narrow set of circumstances, for example: Divorce is against the spouse’s religion and neither party plans on remarrying; or the parties need to remain married for an additional period of time in order for one spouse to be eligible to claim an interest in the other person’s Social Security benefits; or one spouse has significant medical issues which prevents him or her from obtaining private medical insurance; or neither spouse has lived in the state long enough to file a regular divorce action.

In most situations, a legal separation is only a temporary solution and the action is filed with the intention of eventually obtaining a divorce.

Due to the many choices involved in a legal separation it’s important to find a family law attorney to help you through the process. Even if you are just considering your options at this point, it is important to contact a knowledgeable family law attorney. I offer a free consultation and can help you to understand your rights and protect them as well as helping you understand what would be involved in your legal separation. If you’re thinking of hiring an attorney for a legal separation, I’d like to help you go over your options and ensure that you’re making the right choices.

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