What is a Legal Separation?

In California, there are three ways to end a marriage: divorce, legal separation, and annulment. At Peace Talks we want you to know your options and we will focus on legal separation in this article. The process for a legal separation is similar to filing for a divorce, but there are some distinct considerations you should know. First, a legal separation does NOT end a marriage. Thus, if either of you want to remarry, you cannot. In essence, a legal separation, let’s you separate your finances and property and allows you to “trial” how things will be separated and handled as if it were a divorce.


The grounds for a legal separation are the same as they are for a divorce. However, there is no residency requirement for a legal separation. In other words, you do not need to have been residing in California for 6 months prior to filing with the court, but you must reside in the county where the papers are filed at the time the case commences. The written agreement filed with the court addresses and outlines the rights and responsibilities of the parties while they are living apart. This means the assignment of assets and the division of property and debts. In addition to delineating the finances, if there are children, the court documents will detail child custody and support arrangements, visitation schedules, and all the other issues that are handled in a regular divorce proceeding.


If you decide you want to separate, you also have the option of entering into a separation agreement. This would be a legally binding contract between the spouses that encompasses the same issues as a court ordered legal separation would, but is done without a judge.


There are some benefits for opting for a legal separation versus a divorce. A person’s marital status is preserved which can be important for religious reasons. Especially for couples who are unable to divorce, this alternative allows them to keep their status, yet live their lives as if they are unmarried. As mentioned above, it gives a couple an opportunities to live apart and see if divorce is actually what they want to do. By going through the legal separation process, you are establishing exactly how things would be handled if you were divorcing. Therefore, it’s important to make sure your decisions are what you can live with because usually a judge will look to the terms of your legal separation as the terms of your divorce.


Another benefit is the ability to continue your health insurance under your spouse’s coverage, but you will need to check to see if the policy addresses consequences if a couple separates. Also, this status may allow you to keep certain military benefits. There is a ten year marriage rule to qualify for certain social security benefits, and if you have not met this anniversary, the time period of separation may allow you to reach this goal. There may also be possible tax benefits. Unlike a divorce that has a waiting time for finality of at least 6 months, a separation takes effect immediately after it is ordered.


If you are considering a divorce, but there is a potential for reconciliation, taking legal action may not be the choice to make. In many circumstances, couples filing for legal separation and going through this exhaustive process ultimately divorce in time. So it’s important to do some serious thinking before this decision is reached. At Peace Talks, we are available for consultation for both of you to consider all of your options and make the best choice for your family. Call us today. We are here to help.