Our Irvine Divorce Lawyers Explain the Rules Surrounding Legal Separation

While a couple may have decided they no longer wish to live together as a married couple, they have a variety of options besides divorce. Spouses who would like to part ways can also file for a legal separation in California, which generally has far less requirements than a standard divorce and affords couples special benefits, such as the ability to maintain a shared healthcare plan or avoid religious issues.

While legal separations may seem unusual, they are actually quite common and allow for many of the same benefits as a divorce. For example, a separation lets a couple to permanently separate, end the marital estate so that any property or debt acquired will no longer be considered joint property, and allows couples to pursue child custody and support, along with alimony payments.

Most importantly, while California law requires couples to have resided in California for a minimum of six months before initiating a divorce proceeding in the state, a legal separation does not carry such a requirement. A couple who does not meet this initial requirement may wish to file for a legal separation now and proceed with a divorce once they become eligible, or at any time down the line. Converting a legal separation into a dissolution of marriage is permitted anytime after the initial filing of a legal separation.

Differences Between a Legal Separation and a Divorce in California

While divorces and legal separations are quite similar, there are a few primary differences to each type of action. For example, a divorce is granted even when one party objects to the action, while a legal separation requires that both parties consent to the agreement. As mentioned above, a divorce requires at least one of the spouses to have resided in California for a minimum of six months in order to file for a divorce, a requirement that does not exist for a legal separation. Finally, a legal separation is valid immediately upon signing, whereas there is a six-month waiting period before a divorce can be considered valid, even after the parties’ agreement has been entered by the court.

Beyond those differences, however, the process for completing a legal separation versus a divorce are quite similar. Each party will be required to come to the table with a full view of their total assets and marital debt, and they will be equally divided unless a pre-nuptial or post-nuptial agreement exists. Similarly, the couple should plan to consider how they would approach a child custody or support arrangement, and the court will determine whether the arrangement is logical and assigns the greatest responsibility to the party that has served as the primary caregiver throughout the marriage. Similarly, the couples can agree to an alimony arrangement that ensures each party’s lifestyle remains relatively unchanged. Generally speaking, Orange County divorce courts are quite flexible and largely allow couples to determine the terms of their legal separation, aiming to interfere as little as possible.

An Irvine Legal Separation Lawyer at Our Firm is Here to Help

The attorneys at Seastrom Tuttle Murphy Dockstader are eager to help their clients navigate their legal separation. Our accomplished divorce attorneys are well-versed in legal separation agreements and can advise whether a legal separation or a divorce are the best approach for your particular marriage or partnership. Our divorce lawyers understand that this is a challenging, emotional time for you and your family, and we aim to walk you through the process in a conscious manner. Call us today at 949-474-0800 to schedule your consultation.

Common Questions About Legal Separation in California

How is legal separation different from divorce in California?

A legal separation resolves the same issues a divorce does, dividing property and debt, setting support, and establishing custody, but it does not end the marriage. The parties remain married and neither can remarry. The practical differences are that a legal separation requires the other spouse’s agreement, since a court cannot grant one over an objection, while a divorce can be obtained unilaterally. There is also no six-month waiting period for a separation, and no county or state residency requirement of the kind dissolution requires.

Why would someone choose legal separation instead of divorce?

The usual reasons are practical rather than legal. Some spouses want to preserve eligibility under a health plan or a benefit that terminates on divorce, though many plans treat legal separation as a qualifying event, so this must be verified with the specific plan rather than assumed. Religious objections to divorce lead some couples to separate instead. Others use it as a way to divide finances and establish orders before either spouse has met the residency requirement to file for dissolution. And some are simply not ready to end the marriage while wanting the financial questions resolved.

Can a legal separation be converted into a divorce later?

Yes. A pending legal separation can generally be amended to a dissolution before judgment, and where a judgment of legal separation has already been entered, either spouse can later file for dissolution. The property division in the separation judgment ordinarily stands, so the later dissolution addresses the status of the marriage rather than reopening the division. That is worth understanding before agreeing to a separation judgment: the financial terms are usually final, not provisional.

Why does the date of separation matter so much?

Because it is the line that divides community from separate property. Earnings and acquisitions after that date are generally separate, and debts incurred after it are generally the responsibility of the spouse who incurred them. California defines the date as when a complete and final break in the marital relationship occurred, requiring both that a spouse expressed an intent to end the marriage and that their conduct was consistent with it. In cases with substantial income or a business, a few months’ difference in that date can move real money, which is why it is litigated on evidence rather than settled by assertion.

About the Firm

Seastrom Tuttle Murphy Dockstader is a family law firm in Irvine representing clients throughout Orange County, and in Los Angeles County. The firm practices family law exclusively. Its attorneys include Fellows of the American Academy of Matrimonial Lawyers and of the International Academy of Family Lawyers, and attorneys certified as specialists in family law by the State Bar of California Board of Legal Specialization. Call 949.474.0800 to discuss legal separation or dissolution with the firm.