Legal Separation Explained

A legal separation is a court ordered judgment that defines the rights and responsibilities of married persons with respect to their property, assets, debts, and child custody (if applicable).

Legal Separation v. Divorce: The major difference between a legal separation and a divorce is that after a legal separation the spouses remain married; whereas, after a divorce, spouses are no longer legally married.

Legal Separation Benefits

Insurance Benefits: Legally separated spouses might be able to retain their health insurance benefits that might otherwise terminate if the spouses were to file for a divorce as opposed to a legal separation.

Note: Health insurance policy terms vary from policy to policy. It is important to check with your health care provider to ascertain whether or not your health insurance will continue after a legal separation.

Military Benefits: A legally separated spouse might be entitled to retain his or her spousal military benefits that might otherwise terminate if the spouses were to file for a divorce as opposed to a legal separation.

Note: A marriage of ten years or longer is usually required before the spouse of a military service person may receive some types of military benefits.

Social Security Benefits: A legally separated spouse might be entitled to retain spousal social security benefits that might otherwise terminate if the spouses were to file for a divorce as opposed to a legal separation.

Note: A marriage of ten years or longer is usually required before some types of social security benefits are conferred to a spouse.

Estate Planning Benefits: A legally separated spouse retains authority, absent contrary legal provisions to the contrary, such as provision provided in an executed power of attorney, to make medical decisions for his or her dying or incapacitated spouse. A divorce severs this spousal authority.

Immigration Benefits: A legally separated spouse, who is not a United States citizen, but who otherwise retains beneficial immigration status by virtue of his or her marriage to a U.S. citizen, might retain the beneficial immigration status that otherwise could be lost after a divorce.

No Waiting Period: A legal separation may be filed at any time during the marriage. In contract, to obtain a California divorce, at least one spouse must have resided in the state of California for no less than six months prior to the divorce filing.

Note: Three month county residency also applies to California divorce cases.

Property Issues: Legally separated spouses may remain married, and yet, have their respective separate and community property rights defined in the judgment for legal separation. This is similar to defining property rights in prenuptial or inter-marital agreements (post-nuptial agreements), but without the need to agree on every issue, so long as the spouses agree to legally separate. A legal separation may also be used to define the respective spouses’ rights and responsibilities to ownership, management, and/or control, of property, assets, and debts.

Child Custody, Visitation, & Child Support: Similar to divorce, legally separated spouses may receive court ordered child custody, child visitation, and/or child support as part of their legal separation judgment.

Note: Child custody, child visitation, and child support issues are not usually relevant legal issues when spouses will continue to reside with each other after divorce or legal separation.

Spousal Support (Alimony): Legally separated spouses may receive court ordered spousal support (alimony) as part of the legal separation court orders. This is true even if the spouses intend to live together after their legal separation.

Tax Benefits: Legally separated spouses may be able to deduct spousal support payments from his or her income taxes when the legally separated spouses live apart. Also, legally separated spouses, who are not paying or receiving spousal support, may be able to file joint tax returns to maximize tax deduction benefits.

Note: Tax law in this area changing frequently. It is important to check with a California divorce lawyer and your tax professional before making changes to your California or federal tax deductions after a legal separation or divorce.

Domestic Violence Issues: Legally separated spouses may seek domestic violence restraining orders (DVRO) against an abusive spouse, while at the same time, retain the benefits of a marriage. Of course, persons who are legally divorced may also seek a domestic violence restraining order against a former spouse, but persons who are legally separated may have community property, which was not previously divided due to a divorce, used to pay restitution for any damage caused by the spouse responding to the DVRO. After divorce, the DVRO court will not usually be able to order restitution from community property because the former spouses’ community property no longer exists (some exceptions apply).

Note: A DVRO may also be used by a petitioner to request restraining orders against a person who is domestically related to the petition, while simultaneously, requesting child custody, child support, child visitation (parenting time), spousal support, paternity orders (establish parentage of a child’s father), and more.

Religious Concerns: A legal separation is not a divorce. Spouses who oppose divorce for religious reasons might consider a legal separation as an alternative to a divorce.

Note: A legal separation does not violate the tenets of many religious faiths; however, every religion has different tenets and it is important that any person who is considering a legal separation or divorce verify with his or her respective faith leader(s) to ascertain the legal and religious impact of a legal separation or divorce.

Inheritance Issues: A legally separated spouse continues to have community property rights at the death of his or her spouse. Therefore, if a legally separated spouse survives the death of his or her spouse the living spouse will have whatever community property that was not separated by the legally separation equally divided (50% of any undivided community property value to the surviving spouse and 50% to the decedent’s heirs, if any).

Alternatively, the death of a divorced person rarely has any undivided community property at the time of his or her death; therefore, there is no community property interest that inures to the benefit of the surviving spouse. Of course, there would be an exception to this outcome if a former spouse died before the surviving spouse had an opportunity to collect his or her share of the community property at divorce.

Presumption of Paternity: Legally separated spouses who have children during marriage will enjoy the legal presumption that the children are the biological children of both spouses. This legal presumption may be overcome in some situations, but where paternity is not challenged, the children born to legally separate parents will have the right to inherit from those presumed parents. Also, a father, who is presumed to be the biological father of a child, may receive benefits for tortious conduct against his presumed child (i.e. wrongful death benefits and claims, etc.).

Spousal and Marital Privilege Remains: A spouse may not be compelled to testify against his or her spouse in California. There are two legal doctrines that cover this concept: 1) marital privilege, and 2) spousal privilege. Essentially, martial privilege means that a spouse may not be forced to expose the private communication between spouses; spousal privilege means that a spouse may not be forced to testify against his or her spouse (even as to non-verbal communication). Because a legal separation does not sever the marriage, persons who are legally married continue to have both marital and spousal privilege. Alternatively, the contents of any post-marital communication, which was made between former spouses, may be revealed by court order (compelled testimony). This is true even if the post-marital communication between former spouses was intended to be a secret by and between the former spouses.

Limitations of Legal Separations

No Right to Remarry: Legally separated spouses remain married; therefore, a legally separated spouse, whose marriage is not dissolved by divorce or death, may not marry again without invalidating the subsequent marriage and possibly committing the crime of bigamy.

Note: It is a crime to knowingly marry more than one person at a time (PC 285).

Debt Liability: A legally separated spouse is vicariously liable for his or her spouse’s necessary debts, which are incurred on behalf of, and during, the marriage. Also, a legally separated spouse is vicariously liable for the debts incurred as a result of his or her spouse’s negligent act, when that negligent spouse was acting on behalf of the marriage at the time of his or her negligent act. With some exceptions, divorce generally severs vicarious liability.

Agreement Required: A legal separation requires both spouses to agree to legally separate. This is true even if the spouses do not otherwise agree on all the terms of the legal separation itself. In contrast, a California divorce does not require both spouses to agree to a divorce.

Note: California is a No-Fault divorce state. This means that a California judge, who presides over divorce cases, will not inquire as to the reasons a person wants a divorce, so long as the person who wants the divorce claims “irreconcilable differences”or "incurable insanity" in his or her divorce petition. It does not matter if the spouse against whom divorce is sought agrees or disagrees with the divorce petition.

Requirements for Legal Separations

Legal separation petitions are filed in family law court. Generally, the spouses will file a legal separation agreement, along with required legal forms that indicate to the family law judge how the spouses would like to define their respective rights and responsibilities to property, assets, and debts. If the spouses cannot agree on all issues, but otherwise agree to legally separate, the judge may receive evidence from the spouses before deciding on a particular issue.

Note: Legally separated spouses, who subsequently divorce, will usually find that the divorce process is expedited. This is because many of the issues taken up in a divorce case are already settled after the legal separation (i.e. division of community property, child custody, alimony, etc.)

Important: Keep in mind that proper legal procedures and rules regarding notice, evidence production, and document filings must be strictly observed in legal separation cases. Family law judges are not lenient on the rules of law and legal procedures simply because non-attorney litigants are unaware of the rules and legal procedures. It is important to retain an experienced family law attorney before filing, or responding to, a petition for legal separation.

Legal Separation and Date of Separation

A legal separation and the date of separation are not the same thing. A legal separation is a judicially recognized separation of the respective spouses’ rights and responsibilities concerning their joint and/or separate property, assets, and debts, but which otherwise leaves the spouses married.

A date of separation is a term associated with a divorce case. A date of separation is important in divorce cases for determining the parties’ respective community property and/or separate property rights, debt allocation, spousal support, and more. Certain rules apply to determine a date of separation when the parties disagree as to the actual date of separation.

Legal Separation and Annulments

A legal separation is not the same as an annulment. An annulment, also called a nullity of marriage, is a marriage that is void or voidable for various legal reasons, such as a marriage based on fraud or duress, a marriage to a person who is already married [bigamy], a marriage between persons who are related to one another within a certain degree of consanguinity (i.e. siblings, cousins, marriage to aunt or uncle, etc.), and more. For more information, see Annulment.

For more information on legal separations, divorce, or annulments, contact our experienced family law attorneys today for a free consultation. Our team of divorce and family law attorneys have successfully handled hundreds of family law legal issues in the Inland Empire, including cases involving domestic violence restraining orders (DVRO), child protective service (CPS) defense, child custody, fathers’ rights, grandparents’ rights, stepparent adoption, child move away requests, ex parte emergency hearings, and more. Call today!

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