Legal Separation as a Precursor to Divorce in California

Legal Separation as a Precursor to Divorce in California


Many people mistakenly believe that legal separation is essentially the same as divorce, but this is inaccurate. Legal separation is an alternative to divorce that can potentially serve as a springboard to a formal divorce in the future, but it is not as final as a divorce. Legal separation can functionally allow married spouses to hold themselves out as unmarried and live separately while they continue taking advantage of the legal benefits that marriage offers.

If you are thinking about ending your marriage in California, it’s essential to think about your reasons behind this consideration and the effects your divorce could potentially have on your life. It’s important to note that a legal separation does not simply mean one of you moving out of your marital home and living separately. Legal separation requires a formal family court agreement that includes specific terms and conditions.

How Does Legal Separation Work?

Legal separation essentially allows a married couple to negotiate the terms of the divorce without undergoing the formal divorce process. Instead, the court will review the situation and help the couple determine the terms of their legal separation, assigning them rights and responsibilities that take effect once the legal separation is completed and a court order issued. In addition, there is no waiting period for a legal separation, unlike divorce proceedings that require a mandatory six-month waiting period in California.

Many couples choose legal separation instead of divorce because of the legal advantages that marriage offers. Unless either of the spouses wishes to remarry in the immediate future, legal separation can be more advantageous for both of them than divorce. Some of the benefits of legal separation in California include:

  • The ability to claim “married” status when filing tax returns. Married couples enjoy greater tax breaks than single filers, and this alone can be enough to incentivize a married couple to choose separation instead of divorce.
  • The ability to remain flexible in determining the course of your future. Legal separation could serve as a cooling off period that allows the couple to eventually reconcile, or it could become the springboard for a final divorce in the future.
  • Taking advantage of separated status when residency restrictions prevent divorce.
  • Maintaining one spouse’s eligibility to claim government benefits through their spouse. For example, a spouse can claim a more significant share of their spouse’s Social Security benefits after they have been legally married for 10 years. Divorcing before reaching the 10-year mark would mean reduced benefit eligibility.
  • The ability to live separately when religious beliefs do not permit divorce.
  • The ability to protect financial interests when the couple is unwilling or unable to begin divorce negotiations.

With a legal separation order, the court will assign financial responsibilities for the couple’s assets, explain each spouse’s rights under the terms of the separation order, and provide additional orders depending on whether the couple has minor children. You may not wish to undergo a formal divorce at this time, but if you and your spouse have children together and intend to live separately, you will likely need to undergo a child custody determination so the court can ensure your children’s best interests remain protected.


What Happens After Legal Separation?

A legal separation can be a crossroads in a marriage, eventually leading to reconciliation or a final divorce. Once you and your spouse have your legal separation order, it is ultimately up to the two of you to determine what happens next. Some couples use legal separation as an opportunity to let their marriage problems cool off so they can revisit them with clearer heads in the future. After some time apart, a couple may decide to work through their issues and carry on as a married couple again, or they may decide they are beyond the hope of reconciliation and press forward with a divorce.

When a legally separated couple chooses to move to divorce proceedings, their legal separation can significantly streamline the usual extensive timeline that divorce typically requires. In some cases, the family court order issued for a couple’s legal separation can cover the same rights and responsibilities for their divorce, eliminating the need to revisit every issue their divorce entails. It is also possible to use the legal separation order as a starting point for divorce proceedings, which would streamline the process. However, suppose the couple secured their legal separation order, and an extended time passes before they move to divorce proceedings. In that case, they may need to renegotiate some terms of their separation order for divorce.

Navigating the Legal Separation Process

If you and your spouse have had marital issues and believe that legal separation or divorce is necessary at this point, it is crucial to speak with an experienced family law attorney about your concerns. The right attorney will walk through your issues with you and help you determine whether legal separation or divorce would better suit your needs and interests.

Legal separation is generally a more relaxed process than divorce. You can take advantage of divorce mediation for legal separation much the same way as you can in a divorce case. However, mediation allows the spouses to privately negotiate the terms of their separation, typically allowing them to reach more personalized results than litigation allows. You, your spouse, and both of your respective family law attorneys meet with a neutral mediator and work through the terms of your legal separation item by item. This process will determine each of your financial obligations, such as who will continue paying which bills and responsibility for the marital debt, and can provide the opportunity to settle some property division questions under California’s community property statutes.

The attorneys at Bickford Blado & Botros can provide the compassionate and responsive legal representation you need when facing legal separation or divorce. If you are unsure which of these options would better suit your interests, we can help you understand the benefits and potential drawbacks of both options to make a more informed decision about your legal options. Whether you need guidance for legal separation or want to ensure that your separation can later serve as the foundation for an easier divorce process, we can help. Contact us today to schedule a consultation and learn more about the potential benefits of legal separation in California.



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