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.