Legal Separation

What is the process Legal Separation?

Many clients ask me if they should file a legal separation prior to filing a petition for dissolution or instead of a dissolution petition. There are a few cases were there a legal separation may be appropriate but in most cases, it is more cost effective to file a dissolution rather than a separation.

The process for a Legal Separation is the same process as a Dissolution in California.  The difference is that at the end of the process when the Final Judgment for Legal Separation has been entered, the parties are still married to each other.  A Dissolution matter and a Legal Separation matter will use exactly the same forms.

In some cases a person will not want to get divorced but they will agree to a Legal Separation.  Some people believe that you must have the consent of a spouse in order to obtain a Divorce, in California that is not true. If one spouse requests a divorce, a court would not grant the other spouse’s petition for legal separation. The divorce will prevail over the legal separation. In order for the court to grant a legal separation, both spouses would have to agree for the case to be a Legal Separation rather than a Dissolution. Since a legal separation prohibits a spouse from being remarried, both parties are required to consent to a legal separation. Only one spouse is required to consent to a divorce.

Some parties may believe that they must file for a Legal Separation in order to move out of the marital home and in many cases a Legal Separation is confused with the Date of Separation.

In the State of California the date of separation is the date in which one spouse communicates to the other that they do not intend to remain in the marriage. Therefore the Petition for Dissolution would contain the same date of separation as a Petition for legal separation. If a spouse  files a petition for legal separation and later wishes to be divorced, they will still need to file a divorce later on or you would need to file an amended petition to change from a separation to a petition for dissolution.

Each case is unique and the answers above are not intended to account for every variable. There are several reasons why a couple may seek a legal separation as opposed to a divorce. There are some religions which do not recognize a couple’s desire to divorce, therefore they may choose to file a Petition for Legal Separation as opposed to a Petition for Dissolution. A couple may still file for a Divorce after a Judgment for Legal Separation has been entered.

In some cases a couple may wish to file a legal separation for purposes of being able to file their income taxes while they are in the process of filing for a divorce. judgment for Legal Separation does not have a waiting limit, whereas a Dissolution Judgment does. From the time you serve the divorce papers to your soon-to-be-ex spouse, you cannot be officially divorced for at least six months and one day. Where there is a tax benefit to both parties, they may seek to obtain a Judgment for Legal Separation in order to be able to file as single or head of household for that income tax year.

In other matters a case may start with a Petition for Legal Separation as the parties have not been residents of the State of California long enough to meet the jurisdiction requirements to file a Petition for Dissolution.  In these cases the parties may wish to file the Petition for Legal Separation and after they have met the residency requirements, they may amend the case to be at Petition for Dissolution.

There are some cases where the parties have no intention of remarriage and they wish to remain on the other party’s medical insurance policy and the employer will allow them to remain on the policy even after a Judgment of Legal Separation. In those instances, a party may seek to file a Petition for Legal Separation rather than a Petition for Dissolution.

The disadvantage to filing a Legal Separation is that neither party is free to remarry as they are still legally married to each other. If either spouse wishes to remarry, the parties will need to file a Petition for Dissolution and wait the required time [ a minimum of six months and one day after service of the Petition] for the Judgment to be entered.