difference between legal separation and divorce Archives

Family law is complex, and misunderstandings abound. Perhaps nothing is more misunderstood than legal separation. Disagreements can arise and cause both parties to give each other some space; this is not, however, a legal separation. This and many other myths frequently cause confusion and serious mistakes.

Attorney Judy L. Burger is a Certified Family Law Specialist in California who can help you understand divorce, separation, and related issues more. She shares the truth about a few common legal separation myths so couples can make wiser decisions for their future.

Myth #1: Legal Separation Means Physical Separation

“We’re married but haven’t lived together for over two years; I guess you could say we’re separated.” We hear this often in our law offices, and it highlights the popular confusion over “separation.” Fortunately, the California legislature cleared up this ambiguity in 2017. Family Code 70 states the following:

(a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

The spouse has expressed to the other spouse his or her intent to end the marriage.
The conduct of the spouse is consistent with his or her intent to end the marriage.

(b) In determining the date of separation, the court shall take into consideration all relevant evidence.

(c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.

According to this interpretation, a husband and wife may still live in the same home and be legally separated. A legal separation judgment divides assets and other agreements but does not dissolve the marriage. A physical separation simply means the husband and wife no longer reside together. It does not automatically become a “legal separation.”

Myth #2: I Can File for Legal Separation Independent of My Spouse

This myth is born of independence and alleges that a husband or wife may file for legal separation without the consent of the other. In most cases, this is false.

California Family Code Division 6: Nullity, Dissolution, and Legal Separation; Chapter 4: General Procedural Provisions; Section 2345 states, “The court may not render a judgment of the legal separation of the parties without the consent of both parties unless one party has not made a general appearance and the petition is one for legal separation.”

Essentially, this means that both spouses must agree to the court’s judgement of legal separation. In rare cases, a petitioner may ask for legal separation, but the other spouse never responds. The petitioner may then file for a default judgment of legal separation from the court.

Myth #3: Spouses Choose Legal Separation Because They Don’t Believe in Divorce

Legal separation or divorce are intensely personal choices that are made for numerous reasons. Some couples eschew divorce over moral or religious beliefs, but far more choose legal separation for other reasons. These can include:

Tax benefits
Insurance or retirement benefits
Military spouse benefits
Less emotional trauma for the family

Discuss with your CA Family Law Attorney whether divorce or legal separation is best for your circumstances.

Seasoned Help with Divorce and Legal Separation

California Certified Family Law Specialist Judy Burger has walked with many couples through legal separation or divorce. She can explain how each works and how the particulars apply to your unique situation, including custody arrangements, property divisions, and more. You have rights and options under the law. Contact The Law Offices of Judy L. Burger in California to get the facts and sound advice on how to proceed.

Sometimes two things are similar, but not quite the same. For example, divorce and legal separation both involve major changes to marital relationship. Yet there are some distinct differences between divorce and legal separation. Before deciding which is right for you, you’ll need to consider several factors.

Marital Status

One difference between a separation and a divorce proceeding is that a legal separation does not seek termination of the marriage. Divorce does.

In a legal separation, the parties remain married. Neither can remarry. Remarriage is an option for divorced couples, although it may affect spousal support and social security benefits.

People who remain legally separated may be eligible for:

greater social security benefits at retirement (depending on other factors);
health insurance benefits;
tax benefits enjoyed by filing jointly; and
some military benefits.

A divorced spouse may lose benefits as soon as the divorce is final.

Finances.

The parties still divide up marital and community property and debts whether they are divorcing or legally separating.

Just living apart may not be enough. Couples may remain liable for each other’s debts and legal problems unless they formally separate. A legal separation agreement may provide some protection while spelling out each party’s responsibilities when it comes to financial obligations.

In a divorce proceeding, the final divorce settlement shows a clear division of assets and debts.

Residency Requirements

The party filing for divorce must be California residents for at least six months before filing. In addition, the party must live in the county in which they filed for at least three months. People who do not meet that residency requirement mays file for legal separation instead. The legal separation can be changed to a divorce proceeding at a later date.

Other Factors to Consider.

A legal separation goes into effect as soon as the paperwork is filed. A divorce, however, may take at least six months from filing the petition to signing the final divorce settlement. For couples who need some space, but not a complete end to the marriage, a legal separation might be best.

Also, sometimes a legal separation fits the couple’s religious beliefs better than a divorce. The couple don’t completely break their marriage vows, which may satisfy family and church leaders. However, the parties are spared the ordeal of living together.

Need Help Deciding Whether to Divorce or Legally Separate?

Find out about whether to terminate your marriage or just put it on hold.

To discuss the particulars of your situation, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), Roseville, and surrounding communities.

415-293-8314

Common Legal Separation Myths