Is Legal Separation the Path for You?

There are many reasons why couples pursue a legal separation, including tax issues, health insurance matters and religious beliefs, but the most common is something of a gray area. Sometimes, the couple is unsure if they want to stay married, but they are also not ready to divorce.

Unlike a divorce, there is no residency requirement when filing for legal separation. For example, when filing for a divorce in San Jose, at least one party must meet the residency requirement. This means that at least one of the parties must have been a resident of California for at least six months, and Santa Clara County for at least three months immediately preceding the filing for divorce. This is not required when filing for legal separation. Many people who have recently moved to California and want to end their marriage will choose to file for legal separation so that they can start the process without waiting however long they would otherwise need to in order to meet the residency requirement. Notably, for a California Court to have jurisdiction (i.e., the ability) to make custody or visitation orders, the children must still meet the residency requirements. However, there are exceptions that allow a California Court to make temporary emergency Court orders in cases of an emergency. Therefore, if you need custody and visitation orders but California is not your child’s “home state,” it is important to consult with a seasoned divorce lawyer to discuss your options.

Another important distinction between a divorce and legal separation is with respect to the “cooling off” period. A legal separation does not require a waiting period like divorces do. In other words, if you and your spouse have a full agreement, you can obtain a Judgment of Legal Separation much faster than you can obtain a Judgment of Dissolution of Marriage.

Regardless of whether you choose to file for divorce or legal separation, the date on which you and your spouse separate has significance. State law used to require couples to live apart, meaning that one spouse had to move out, for there to be a legal separation. But the Family Code was amended a few years ago to say that the “(d)ate of separation’ means the date that a complete and final break in the marital relationship has occurred” if two things have happened. The first is that one “spouse has expressed to the other spouse the intent to end the marriage,” and second, the spouse must conduct herself or himself in a way that is consistent with their statement that the marriage is irreparably over. The bottom line is that you can get a legal separation even if you live under the same roof as your spouse.

Some might question why a legally separated couple would want to continue to live together. There are again many possible reasons, including unresolved child custody and child support issues, but the most common is that it is simply too expensive for the couple to maintain two households simultaneously. The date of separation is important because it is used to determine community and separate property interests. Community property rights stop on that date, so income earned and assets acquired after that separation date are the separate property of the acquiring spouse. It is also important to note that the date of separation is also a factor the court considers when determining long-term spousal support.

Navigating the legal aspects of the legal separation process can be very confusing and may seem overwhelming. We at Mello & Pickering, LLP have over 40 years combined family law experience and can help through your legal separation or divorce. Call our office for a consultation and we can help to ensure that your interests are protected.