Posted By Kevin L. Cadora, Esq.
The differences between getting a divorce and getting a legal separation may seem many but there is really only one difference between the two; in a divorce you are returned to single status after judgment whereas you maintain your married status after a judgment for legal separation is granted. All issues in a divorce such as custody, visitation, child support, spousal support division of community assets and debts and attorney’s fees are handled exactly the same in a legal separation. The only difference is the parties remain married after judgment. Notwithstanding, obtaining a judgment for legal separation could have long last financial ramifications that a party must discuss with an experienced family law attorney and accountant before filing. In that case, why file for legal separation if all issues are disposed of by the court? There are three possible reasons to file for legal separation versus a divorce.
First, the parties’ religious and/or cultural beliefs prohibit divorce and therefore the parties remain married in order to maintain the parties’ religious and/or cultural beliefs. Religious and/or culture reasons to file for legal separation are rare but do occur from time to time.
Second, a party may want a divorce but neither party has been a resident of California for at least six months prior to filing, which is a requirement in order to file for divorce in California. Therefore, one party files for legal separation and once the party has been in California for six months, the party amends their petition to dissolution of marriage. There may be many strategic reasons to keep a case in California such as a party is pregnant and wants California to decide custody, visitation and support when the other parent is in another state or California’s family laws are more in a party’s favor than another state. Filing for legal separation and then filing for divorce after a party has been a resident of California for six months is purely strategic and should be discussed with an experienced family law attorney before pursuing.
Finally, a party may file for legal separation because they have a permanent disability and they require the other party’s insurance in order to maintain the marital standard of living. The parties agree to remain married so the disabled spousal can continue coverage under their spouse’s policy, which could off-set the supporting spouse’s spousal support obligation to a much lower level depending on what the supported spouse’s premiums would have been had the parties divorced. Again, filing for legal separation to keep a spouse on an insurance plan should be discussed with an experienced family law attorney before pursuing.
Another important point about legal separation is that the responding party must agree and consent to the legal separation. If the responding party seeks a divorce when the petitioner has filed for legal separation or the petitioner’s changes their mind before the entry of judgment, the court will grant the request for a dissolution of marriage over the party’s objection since California is a no fault state and parties may divorce based upon irreconcilable differences, which basically means for any reason. Filing for legal separation MUST be discussed with an experienced family law attorney as well as an accountant because health insurance coverage may continue unless otherwise agreed by the parties and there are tax ramifications for filing taxes married filing separately is also an important issue when deciding how to proceed with your family law matter.