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Legal Separations in California

A legal separation is a court ordered judgment that defines the rights and responsibilities of married persons with respect to their property, assets, debts, and child custody (if applicable). The major difference between a legal separation and a divorce is that after a legal separation the spouses remain married and after a divorce their marriage is dissolved.

Legal Separation Benefits:

Insurance Benefits: Legally separated spouses might be able to retain their health insurance benefits that might otherwise terminate if the spouses were to file for a divorce as opposed to a legal separation. Note: insurance policy terms vary from policy to policy. .

Military Benefits: A legally separated spouse might be entitled to retain his or her spousal military benefits that might otherwise terminate if the spouses were to file for a divorce as opposed to a legal separation Note: A ten year marriage is required to receive many spousal military benefits.

Social Security Benefits: A legally separated spouse might be entitled to retain spousal social security benefits that might otherwise terminate if the spouses were to file for a divorce as opposed to a legal separation.with divorce. Note: A ten year marriage is required to receive many spousal social security benefits.

Estate Planning Benefits: A legally separated spouse retains authority, absent a preplanned legal provisions to the contrary, to make medical decisions for his or her dying or incapacitated spouse. A divorce severs this spousal authority.

Immigration Benefits: A legally separated spouse, who is not a United States citizen, but who otherwise retains beneficial immigration status by virtue of his or her marriage to a U.S. citizen, might retain the beneficial immigration status that otherwise would be lost after a divorce.

No Waiting Period: A legal separation may be filed at any time during the marriage. In contract, to obtain a California divorce, at least one spouse must have resided in the state of California for no less than six months prior to the divorce filing. Note: Three month county residency also applies.

Property Issues: Legally separated spouses may remain married, and yet, have their respective separate and community property rights defined in the judgment for legal separation. This is similar to defining property rights in prenuptial or intermarital agreements, but without the need to agree on every issue, so long as the spouses agree to legally separate. A legal separation is used to define the spouses’ rights and responsibilities to ownership, management, and/or control, of property, assets, and debt.

Child Custody, Visitation, & Child Support: Legally separated spouses may receive court ordered child custody, child visitation, and/or child support as part of the their legal separation judgment. Note: Child custody, child visitation, and child support issues are not relevant when spouses will continue to reside with each other after legal separation.

Spousal Support (Alimony): Legally separated spouses may receive court ordered spousal support as part of the legal separation court orders. This is true even if the spouses intend to live together after their legal separation.

Tax Benefits: Legally separated spouses may be able to deduct spousal support payments from his or her income taxes when the legally separated spouses live apart. Also, legally separated spouses, who are not paying or receiving spousal support, may be able to file joint tax returns to maximize tax deduction benefits.

Domestic Violence Issues: Legally separated spouses may seek domestic violence restraining orders (DVROs) against an abusive spouse, while at the same time, retain the benefits of a marriage.

Religious Concerns: A legal separation is not a divorce. Spouses who oppose divorces for religious reasons might consider a legal separation as an alternative to a divorce. Note: A legal separation does not violate the tenets of many religious faiths; however, every religion has different tenets.

Limitations of Legal Separations

No Right to Remarry: Legally separated spouses remain married; therefore, a legally separated spouse, whose marriage is not dissolved by divorce or death, may not marry again without invalidating the subsequent marriage and possibly commit the crime of bigamy. Note: It is a crime to knowingly marry more than one person at a time. See Annulments and Bigamy.

Debt Liability: A legally separated spouse is vicariously liable for his or her spouse’s necessary debts, which are incurred on behalf of, and during, the marriage. Also, a legally separated spouse is vicariously liable for the debts incurred as a result of his or her spouse’s negligent act, when that negligent spouse was acting on behalf of the marriage at the time of his or her negligent act. With some exceptions, divorce severs vicarious liability.

Agreement Required: A legal separation requires both spouses to agree to legally separate. This is true even if the spouses do not otherwise agree on all the terms of the legal separation itself. In contract, a California divorce does not require both spouses to agree to a divorce.

Requirements for Legal Separations

Legal separation petitions are filed in family court. Generally, the spouses will file a legal separation agreement, along with required legal forms that indicate to the family law judge how the spouses would like to define their respective rights and responsibilities to property, assets, and debts. If the spouses cannot agree on all issues, but otherwise agree to legally separate, the judge may receive evidence from the spouses before deciding on a particular issue.

Proper legal procedures and rules regarding notice, evidence production, and document filings must be strictly observed in legal separation cases. Note: Family law judges are not lenient on the rules of law and procedure simply because non-attorney litigants are unaware of the rules. It is important to retain an experienced attorney before filing or responding to a petition for legal separation. See Common Legal Separation Forms.

Legal Separation and Date of Separation

A legal separation and the date of separation are not the same thing. A legal separation is a judicially recognized separation of the spouses’ rights and responsibilities concerning their respective property, assets, and debts, but which otherwise leaves the spouses married. A date of separation is a term associated with a divorce case. A date of separation is important in divorce cases for determining the parties’ respective community property and/or separate property rights, debt allocation, spousal support, and more. Certain rules apply to determine a date of separation when the parties disagree as to the date of separation in a divorce case. See Divorce.

Legal Separation and Annulments

A legal separation is not the same as an annulment. An annulment, also called a nullity of marriage, is a marriage that is void or voidable for various legal reasons. For more information, see Annulments.

For more information on legal separations, divorce, or annulments, contact our experienced family law attorneys today for a free consultation.

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