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.