Legal Separation versus Divorce: pros and cons of each

The term “legal separation” or “separation” mean two things in family/divorce law, and they can be confusing.

First, your “date of separation” applies to everyone getting divorced. After your date of separation, which is the date you made the decision to separate and live forever apart, AND you physically separated, you are ‘separated’ from your spouse, and – here’s the important part – everything you acquire, including earnings, property and debt, is your separate property and not subject to equal division with your spouse.  Don’t overthink this date. Generally it’s the day you made the final decision to divorce.

Second, there is a box on the Petition for you to mark “Legal Separation” or “Dissolution” (divorce). Almost everyone marks Dissolution” here because they want a divorce.  A Legal Separation is the same as a divorce in that you will still determine child custody, visitation and support, property division, and spousal support, but at the end of the process, you and your spouse will be legally married. This means that you may not marry someone else.  When you get a dissolution, you are not married at the end of the process.

Legal Separations are rare, but they happen.  There are a couple reasons why someone may check the “Legal Separation” box on the Petition.

The first is due to residency. To file for divorce in California, you have to be a resident of California for the six months immediately prior to the filing, as well as a resident of the county you are filing in for the three months immediately prior to the filing. There are no such requirements for a Legal Separation, so some will file that way to get the process started, then amend the Petition for divorce once the residency requirements have been met.

The second is for religious reasons, when spouses do not wish to ‘divorce.’ It must be noted, however, that one spouse cannot force the other to remain married. This is not permitted under California law. If one spouse, therefore, files for Legal Separation, and the other responds by filing for dissolution of marriage, then the court will amend the Petition to dissolution. A Legal Separation is only available if both parties agree to it.

The final most common reason for filing for Legal Separation is for health care reasons, most frequently by older couples. I had a case where the parties had been married for more than 40 years, and the wife was covered under the husband’s health insurance. She would not be able to obtain health insurance on her own except at exorbitant cost. Because both parties were elderly, they determined that they would not wish to marry again, and decided to go with the Legal Separation to protect the wife’s health insurance.

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Dispelling the fairy tale: How kids benefit from parents who don’t “stay together for the kids”

This morning I posted an article from the Huffington Post about celebrities that made the decision to divorce when they knew they were pregnant.  I am of the opinion that children can sense and feel tension and hostility in the family, even if it’s a cool hostility.  And I am not alone: at the family law update classes I attend, research backs me up.  Children from intact happy households fare the best, but those in intact unhappy households fare worse than those in homes with divorced parents.  But I still often hear from clients and friends that they want to stay together until the children are in college, or at least until they are “old enough to handle it.”

But what is this teaching out children?  We are teaching them to put others before our own happiness, and indeed, that our own happiness does not matter.  In addition, we are over-emphasizing the importance of marriage and the “fairy tale” of a lasting relationship.  As was so eloquently put by another author on the Huffington Post, we teach our children, by staying together past our relationship’s due date, that being married and unhappy is more valuable than being alone and happy.

Is that really the message we want to send?

How to prepare for divorce

Is there anyone out there anymore who doesn’t know someone who is getting divorced or thinking about it?

The first question on anyone’s mind is what will happen? The most common concerns are about money – rent, bills and health insurance – as well as children. Where will they live? How will we share custody? What are my rights?

Basically, you want to know: what do I need to know NOW so that the process is easier, smoother, and I don’t get in trouble?

Sadly, it can seem nearly impossible to find out this information. If you go to see a lawyer, he or she will spend most of the time trying to convince you to pay out thousands of dollars in a retainer. Trying to find relevant, informative, accurate and current information on the internet is like trying to sort sand on the beach.

So, what can you do? One solution is to consult with an attorney, but say up front that you only want information and do not intend to retain. That can work sometimes, but not all lawyers are equal, and the information you get can be of varied usefulness. You can research on your own – for example, Nolo Press has some GREAT resources. Be sure you stick with state-specific information, however, since state divorce laws vary widely. You can check out my FREE 7-day divorce series on how to save money when getting divorced. Or, you can try family law coaching, which is what I do.

Here are some tips to get you started:

1. Scan or copy your important documents, like tax returns, bank and credit accounts, retirement and 401K statements, mortgage statements, house and car title deeds, etc.
2. Change your powers of attorney before you file. You may also consider severing your joint tenancy.
3. Get all the most sentimental items out of your house, particularly if they are breakable and/or you have a spouse prone to angry outbursts.
4. Courts like to continue the status quo, so if you plan to make a change (go back to school, change your children’s school, start medical treatment, get braces for your children), then start that before you file for divorce.
5. Talk to a lawyer so you know your rights in your specific situation.
6. Consider getting a post office box.
7. Understand what the date of separation means so you don’t hurt yourself by filing too early or too late.
8. Prepare mentally. Deciding on getting the divorce is not the hard part. It’s only the beginning. Consider going to therapy, even if you think you don’t need it. If insurance covers it, it couldn’t hurt.

What is "Legal Separation" in California divorce? It’s not what you think!

The term “legal separation” or “separation” mean two things in family law, and they can be confusing.

First, the one that applies to everyone getting divorced. After your date of separation, which you learned all about in the last posting, you are ‘separated’ from your spouse, and – here’s the important part – everything you acquire, including earnings, property and debt, is your separate property and not subject to equal division with your spouse.

Second, there is a box on the Petition for you to mark “Legal Separation” instead of “Dissolution” (divorce). A Legal Separation is the same as a divorce in that you will still determine child custody, visitation and support, property division, and spousal support, but at the end of the process, you and your spouse will be legally married. This means that you may not marry someone else.

There are a couple reasons why someone may check the “Legal Separation” box on the Petition.

The first is due to residency. To file for divorce in California, you have to be a resident of California for the six months immediately prior to the filing, as well as a resident of the county you are filing in for the three months immediately prior to the filing. There are no such requirements for a Legal Separation, so some will file that way to get the process started, then amend the Petition for divorce once the residency requirements have been met.

The second is for religious reasons, when spouses do not wish to ‘divorce.’ It must be noted, however, that one spouse cannot force the other to remain married. This is not permitted under California law. If one spouse, therefore, files for Legal Separation, and the other responds by filing for dissolution of marriage, then the court will amend the Petition to a dissolution. A Legal Separation is only available if both parties agree to it.

The final most common reason for filing for Legal Separation is for health care reasons, most frequently by older couples. I had a case where the parties had been married for more than 40 years, and the wife was covered under the husband’s health insurance. She would not be able to obtain health insurance on her own except at exorbitant cost. Because both parties were elderly, they determined that they would not wish to marry again, and decided to go with the Legal Separation to protect the wife’s health insurance.

What is your date of marriage and date of separation in California divorce, and why are these critical dates?

On the Family Law Dissolution Petition, you have to state your date of marriage and date of separation. These can be critical issues, even if it doesn’t seem so at a passing glance.

The date of marriage is generally not the big issue, as the date is not only commonly known by the couple as their anniversary, but it’s recorded on the publicly-recorded marriage certificate.

The date of separation is trickier. This is the date that you and your spouse physically separated and had the intent to “separate and live forever apart.” If you continued to live in the same house, this can be a difficult date to pinpoint. But what you must understand is that this is generally not a big deal because both parties frequently agree on the date of separation (I think it’s the day when you both knew/decided it was forever and finally over).

But it CAN be a big deal in certain situations. For example, say one party wins the lottery, and then says that the date of separation was before the win (thus making it the winner’s separate property as opposed to be divided equally between the couple). In that case, the issue of the date of separation can be separately litigated in a trial. The court will look at the physical separation of the parties – did they live apart, for example – as well as the intent of the parties and the way they “held themselves out” to others. This involves looking at what others though, such as their friends and family. Did they think they were together or separated? Finally, the court has a pretty strong presumption that the later date is the date of separation.

Divorce in the new economy: Legal separation pros and cons

Divorce is an expensive business, not just with lawyers, but without them, too.  Filing fees are high (most California counties charge up to $400 to file – and that’s for each party!), plus hearings take time – and time off work.  Child care expenses may increase, and living apart means separate rent or mortgage payments, utilities, and other household expenses.

So, with that in mind, is a separation financially preferable to a divorce?  In some cases, yes, as this article explains.

Would you, or have you, and your spouse separate without filing for divorce?  Do you have a separation agreement (hint: you should!)?

Need more help?  Click here for our FREE Divorce e-Course.