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.

California divorce terminology

I am often asked about the terms I use. Here’s a couple:

The term “Family Law” encompasses all kinds of cases, such as divorce, child custody and support, paternity cases, adoptions, domestic partnerships, guardianships, child support cases with the Department of Child Support Services, and modifications to existing orders.

The term “dissolution” is a fancy way of saying divorce. At some point, California decided that the word “divorce” was insufficient and that, for a divorce case, we would call it a “dissolution of marriage.”

“Spousal support” is also called alimony or “separate maintenance.”  While other states do, California does not distinguish between alimony and spousal support.  In California divorce, the term spousal support is the correct one.

Automatic restraining orders in California divorce: Don’t get yourself in trouble!

Getting a divorce in California?  Don’t get yourself into big trouble by violating restraining orders you don’t even know about!  In California, once the Petition is served, you’re restrained from doing these things and can be hurt if you fail to comply:

Series Two: Hearings, Courtroom Decorum, Judges and Procedure

I decided to make a small change to my plan from last week (year! decade!). I am going to save my selected issues for a little later, and start on my next series now: hearings, courtroom decorum, judges and procedure.

We’ll start with hearings: what they are and why we have them. When you file for divorce (or any family law action), your goal is to come to a complete and final agreement with regard to your property and your children. Sometimes, this is accomplished in one sitting. Most often, however, it takes a number of meetings and months (if not years) to accomplish this. During the time that you’re working out the final agreement, you will need intermediate orders. These orders help you to determine who will pay for what and when, who will live where, where your children will live, and how they will be supported. This is where the OSC comes in.

An OSC is an Order to Show Cause, which is the way we ask the court for orders on these and other issues. You prepare the OSC asking for what you want and explaining why you need it. An example is:

“I am requesting that the court make orders regarding custody and visitation for our daughter because we are now living apart and need some help coming to an agreement.”

This is, obviously, a very simplified example, and most OSCs are much more detailed and frequently come with detailed declarations regarding the various aspects of the situation.

When you file your OSC with the court clerk, you will receive a hearing before the court any time within about 6-10 weeks after you file. The time lag depends on the court and the county, and can be a really long time. In Solano County, the wait was nearly six months for a time.

Next time, we’ll talk about what happens while you wait for your hearing…