A Closer Look at Legal Separation
To understand the benefits of legal separation, it is essential to first grasp what this alternative to divorce entails and how it differs from the dissolution formally known as divorce under California law. Legal separation involves the same basic principles as a divorce. It is the formal dissolution of a marriage in which the couple lives separately from one another but remains married. Legal separation addresses all of the same issues as divorce, including division of assets, spousal support, child custody, child support and if applicable, spouse support.
The main difference between legal separation and divorce is that, unlike divorce , legal separation does not formally terminate the marriage. A legal separation permits a married couple to live apart from one another while addressing issues such as elimination of joint accounts, child custody and assets division in an organized manner. If a couple chooses legal separation over divorce, their options are not limited to a return to the conventional married couple lifestyle or the eventual divorce option. Instead, married couples may choose to file for legal separation, and then at some point in the future, file for divorce. Couples may even reconcile and then file for divorce years later. In a divorce, there is no option for reconciliation.
Financial Advantages
From a financial perspective, legal separation can offer several advantages:
Social security benefits. Receiving a divorce will terminate the right to claim on a former spouse’s Social Security benefits, while pursuing legal separation will not. This is advantageous for couples married for over ten years, with one spouse having a much higher benefit level. However, this provision does not apply if the parties later remarry. The claimant will receive a check equal to the amount of benefits earned during the marriage instead of switching to the higher amount entitled to a divorced spouse.
Retirement & pension plans. Beneficiary designations and rights to pensions, retirement and other health, life insurance and disability benefits are affected by the filing for separation/divorce. There can be a tax burden upon assets. A separation filing would keep the bifurcation of these rights from the shared estate until after the bifurcation is resolved.
Debt Obligations. Some debts are considered joint obligor liability. With a separation agreement, such debts can be shared between the parties. Otherwise a creditor may hold you both responsible even when one party was the one who took the loan or received the benefit.
Preserving medical, family or disability benefits. Some employers provide medical, family or disability benefits only to married spouses. Depending on your situation, it may be financially prudent to file for legal separation in order to retain such benefits until the divorce can be finalized, or until a later date.
In some cases, the advantages of remaining legally separated outweigh the benefits of a divorce.
Health Insurance Coverage
In most cases, couples will be able to maintain their insurance coverage even after a separation. While in a divorce the petitioning spouse can often lose their health insurance coverage, this is not so in a legal separation. For those seeking to keep their family health insurance intact, a legal separation might work out best for their long-term goals.
Religious and Personal Factors
Legal separation organizes the legal aspects of a marriage without forcing the couple to formally divorce. This is a real advantage for people who are very religious and who do not believe in the concept of divorce. For example, many people in the Catholic church believe that getting a civil divorce makes it difficult or impossible for them to receive certain religious sacraments in their lives.
For other people, personal beliefs drive their unwillingness to get a divorce. Perhaps they have made an oath to each other to stay together until they die, regardless of how their relationship has changed. In these cases, a legal separation will enable them to live apart and make a new life for themselves while still staying true to their oath.
Some individuals may find that moving into a legal separation is a good first step toward establishing that independence, but they still believe that reconciliation will take place later. In those cases, they may want the advantages of a legal separation for now, but they may not want to limit their options by officially cutting all ties.
Custody and Support
Section 7 – Child Custody and Support
Should either spouse wish child custody and support matters to be adjudicated and enforceable, the legal separation process offers an alternative. Since the couple is not divorced, the official separation judgment will establish a framework to be followed if divorce becomes a reality. Custody arrangements which are adopted by mutual consent provide a convenient way to lay out future expectations. The couple may be able to work out support payments through alimony, or determine child support outlines that can be agreed upon before the fact .
The advantage to legal separation is that the couple does not have to endure the entire divorce process at once, which can often be emotionally and financially stressful. As can be imagined, when the dissolution of a marriage is broken into steps, instead of suddenly dividing property, allocating debts, and deciding child supports, each spouse is less likely to be overwhelmed with the series of events. The couple likely has memories to sort through-both good and bad. Should it happen, there will still be time for the couple to shake off those memories and start fresh on their own when the divorce becomes final, post-legal separation.
Emotional and Social Factors
While your attention may be primarily on the legal implications, you should also consider the emotional and social consequences of a legal separation. Being legally separated from your spouse does not have quite the same social stigma attached to it as having a divorce may. Separation may make more sense to some family members and friends, who may have a hard time accepting the end of the marriage. You can remain married but live separate lives. The acceptance of a legal separation by your family and community may make it easier for you to cope with the effects of ending a marriage.
Legally separated spouses can change their circumstances by either getting back together again or deciding to pursue a divorce. They do not have to worry about a divorce being conditioned on their distinction as single persons or on a particular new partner. Legal separation may allow separated couples to grow closer than they would be if they are legally divorced, giving them a chance to explore whether they truly want to be apart before making the decision to be legally divorced.
The Process of Legal Separation in California
The procedure for obtaining a legal separation in California begins by filing a petition for legal separation, and providing a summons to the other spouse. The summons to the other spouse must comply with the Family Law Rules of Court.
If you would like to obtain a legal separation in California, you must meet the residency requirement. For the purpose of obtaining a legal separation in California, you must have resided in your county for a minimum of 90 days before the filing of the separation petition.
Once the legal separation petition is filed, the petitioner must provide the summons and copy of the petition on the other spouse. If there are minor children, the petitioner must also file and serve a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act . The petitioner must file a Declaration Regarding Automatic Temporary Restraining Orders, and the petitioner should complete and file a Declaration for Default or Uncontested Judgment (Form FL-230).
If the other spouse chooses to respond to the petition, a Response to Petition for Legal Separation (FL-120) must be completed and served upon the filing of that petition. A Financial Disclosure Form must be attached to the response (FL-141). If there are children of the marriage, the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act must be attached. In addition, the Response to Petition for Legal Separation must be filed with the court.
In order to finalize the legal separation, the legal separation judgment (FL-180) must be signed and filed with the court. At least six months after the petition was filed, the petitioner must file the completed legal separation judgment with the court for signing.