Legal Separation Versus Divorce

Andrea Kaye and Stan Prowse Legal Eagle Radio

Many people ask about the difference between legal separation vs divorce. Sometimes they ask because they are not sure their relationship with their spouse is irretrievably broken.

Sometimes they ask for religious reasons, or because legal separation sounds better to them than divorce. Sometimes they ask because they’ve heard group health insurance can still cover both spouses if they’re legally separated but not if they’re divorced, which happens to be true. Usually they are surprised to discover they will go through exactly the same steps either way.

Divorce - DISSOLUTION of Marriage

We need to get our terms straight at the outset. The word “divorce” is not in the California Family Code. The Code instead uses the phrase “dissolution of marriage.” (The Code also uses “spousal support” instead of “alimony.”) At the end of a divorce case, you get a Judgment of Dissolution of Marriage. At the end of a legal separation case, you get a Judgment of Legal Separation. The same mandatory preprinted forms are used for both. If you’re getting a divorce, you check the box next to Dissolution of Marriage. If you’re getting a legal separation, you check the box next to Legal Separation.

Otherwise, both proceedings look exactly alike. All your assets and debts are identified and characterized as community property or separate property, the community assets and debts are divided in half, child support is awarded if appropriate, and spousal support is awarded if appropriate. If your judgment is for Dissolution of Marriage, you can marry someone else the day after it becomes final. But if your judgment is for Legal Separation, you’re still married, and you can’t marry anyone else unless and until you go back to court, file a petition for dissolution of marriage, and obtain a final judgment of Dissolution of Marriage. If you don’t, your next marriage will be bigamous and can be annulled.

(Neither judgment can become final until six months after the court has jurisdiction over both parties. That occurs when, after the petitioner has filed the petition, the respondent is served with the petition and a summons or files a response, whichever happens first. All the necessary paperwork may be completed and filed before six months have gone by, but the effective date of the judgment is written on the judgment form by the clerk, and the clerk will insert the date on which the six months expire.)

Legal Separation

Do not confuse a Legal Separation with the date of separation. The date of separation is usually thought of as the date one spouse makes it clear to the other that their marriage is irretrievably broken and there is going to be a divorce. Sometimes it’s difficult to decide on the date, particularly when people go through a cycle of moving out and moving back in while attempting to “work things out.”

The date of separation is important, because it is the date when community property rights cease to accrue. In other words, earnings after the date of separation are the separate property of the spouse who earned them, not community property owned by both spouses. Likewise, assets acquired after the date of separation with those separate property earnings are separate property, and debts incurred after the date of separation are separate property debts. Deciding to live separately without deciding to become divorced or legally separated does not trigger these changes - you’re still married for all purposes even though you may be miles apart.

For purposes of dividing assets and debts, you need a snapshot of the parties’ assets and debts as of the date of separation. Those are the assets and debts that are divided, not the assets and debts of the parties eight months later when the case settles or goes to trial. On the other hand, for calculating spousal or child support, the court uses the income and assets of the parties when the support order is made, not those on the date of separation. Accurate and complete financial records both from before the date of separation and after are therefore essential.

As we discussed above, because the same things happen in a proceeding for a judgment of legal separation as in a proceeding for a judgment of dissolution of marriage, establishing the date of separation and obtaining and keeping complete financial records is equally important in both cases. As discussed above, the only difference between legal separation and divorce is that you can only marry again if you’re divorced.

San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.