Separation vs Divorce
The following information is not meant to be legal advice. It offers alternatives,
tips and resources for those with no means to hire an attorney.
There is significant confusion in the marketplace about the differences
Legal Separation and a
Dissolution of Marriage. Parties are also often interested to know why one option might be more
advantageous for them than another. The distinctions between these two
routes, however, are actually quite simple.
Legal Separation vs Separation:
At the outset, it is important to understand that a “Legal Separation”
is completely distinct from the concept of a couple being “separated”.
Unfortunately, for whatever reason, the law in the State of California
has utilized very similar terms to mean two completely different things.
A Legal Separation is a distinct and official legal status, wherein parties
go through the process of establishing a custody schedule with the children,
orders are made regarding child and/or spousal support, and property is
divided, as appropriate. The court confers the status upon a couple of
being “Legally Separated”, in the same way that the court
would confer the status of a Dissolution of a Marriage.
In contrast, parties who are married can become “separated”
without going through any sort of legal procedure or process. Separation
takes place when the marriage is over, or, as the law says, when the marriage
is “irretrievably broken”. The parties are still legally married,
but either one or both parties have decided that the marriage is done,
can’t be repaired, and they no longer wish to be married anymore.
In Dissolution and Legal Separation cases, the court will always want
to know what the Date of Separation is. Every case is different, and whether
the Date of Separation has happened in a given case, and with a given
couple, is a question of fact. If the parties disagree about when the
Date of Separation took place, they can ask the court to decide. The court
will look at all of the circumstances to make that determination. Those
circumstances can include the date that one spouse moved out of the marital
home, the date of a big fight, the date one spouse found out the other
was cheating, the date someone filed for Dissolution of Marriage, etc.
None of these activities is necessarily conclusive - again, every case
Dissolution of Marriage (Divorce) vs Legal Separation:
A Dissolution of Marriage (commonly referred to as a divorce) changes
the couple from having the legal status of “Married” persons,
to each individual becoming a “Single” person. This is relevant
for remarriage, filing taxes, and other such activities. However, a Legal
Separation does not terminate the “Married” status of the
couple, the way a Dissolution does. A couple that obtains a Legal Separation
remains married, and never becomes single. However, the actual issues
in the case-
spousal support, division of assets and debts, attorney's fees- are all addressed
and divided up in the same way as in a Dissolution case. The only difference
with a Legal Separation is that the couple stays married; they are married,
but “Legally Separated”. Thus, Legal Separation is usually
not a simpler, easier, or faster way for the parties to go their separate
ways, as some people believe. In fact, couples seeking a Legal Separation
can benefit from retaining counsel as much or more than couples seeking
to dissolve their marriage, as there might be intricate issues at hand
that would be best addressed by counsel.
The vast majority of people elect to pursue a Dissolution of Marriage,
rather than a Legal Separation. The usual reasons for selection of a Legal
- Religious reasons - some churches/religions look down on divorce, but find
Legal Separations to be acceptable.
- Couples over the age of 65 can have tax/retirement benefits from obtaining
a Legal Separation as opposed to a Dissolution.
- If one of the parties has significant health issues and would not be able
to obtain health insurance on his/her own, without the coverage that the
other party has available through their work or otherwise. Many health
insurance plans will only ensure a spouse, not a former spouse. In such
cases, parties may elect to pursue a Legal Separation, so that the ill/injured
spouse can continue to have health insurance.
An attorney can discuss with you the specific issues that you are dealing
with, and can advise you on whether a Legal Separation will help your
situation, or not. The decision is certainly an important one; when you
file your case, you will need to indicate whether you are filing for Dissolution
of Marriage or for Legal Separation. It is possible to commence a case
having filed for one, and then to later on change and switch to another,
but it’s probably best to retain an attorney to help with this process.
Again, either way, the parties will be able to divide up their estate
and deal with all other issues in their case, regardless of whether they
file for Dissolution of Marriage or Legal Separation.