“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.

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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.

The practical aspects of divorce: what has separation taught you that you didn’t expect?

My job is to help my clients with the legal aspects of divorce.  I am not counselor or therapist, pastor or even friend, though I do become quite friendly with most of my clients.  At the same time, I know that there are lots of issues in divorce that are not strictly legal that my clients need to deal with and become accustomed to.  Things like being on their own, or having separate holiday celebrations or living in a smaller space.  But even though I can’t necessarily advise my clients on many of these issues, I like to pass along great information when I receive it, such as this article about what this mother learned after nine years of separation.

What has your separation taught you that you didn’t expect?