Divorce is a difficult experience no matter what a couple’s reasons may be for ending their marriage, and every state has unique laws pertaining to divorce. In some states, couples must separate for a specific timeframe before they can proceed with their divorce. California enforces a mandatory six-month waiting period for granting divorces, meaning the absolute soonest a couple can finalize their divorce is six months from the date their divorce petition is filed. However, it is possible to separate without divorcing in California.
Legal separation is an important option for many couples to consider when they are thinking about divorce. A legal separation is a formal court order that can functionally replace the need to divorce for some couples. During legal separation, the couple must address and resolve many of the issues that they would need to resolve in divorce, but a legal separation does not carry the permanence of divorce.
If you and your spouse are considering ending your marriage, you should understand the potential value of legal separation, either as an alternative to divorce or as a precursor to a likely divorce at a later date. Taking the time to resolve divorce-worthy issues through a legal separation can potentially provide you and your spouse with the breathing room you need to make rational, practical decisions about your marriage, family, shared assets, and future lives. With a legal separation, you and your spouse will have the flexibility of maintaining the legal benefits that marriage offers for as long as you like, eventually reconciling and withdrawing the separation order or proceeding with a divorce.
Spouses end their marriages for a wide range of reasons, many of them deeply personal. Divorce is a very permanent legal option that ends a marriage contract completely in the eyes of the law. When a couple is having problems in their marriage, they should weigh their potential solutions carefully before committing to one solution over another. If there is any uncertainty, legal separation can be beneficial for many reasons, and it’s vital to understand the advantages this option offers when implemented in lieu of divorce (or leading up to a divorce).
If neither you nor your spouse has any intention to remarry after ending your marriage, legal separation can provide several practical benefits that are worth considering. For example, you and your spouse can establish separate living spaces and maintain essentially separate lives but still retain the legal advantages of being married. The two of you can file joint tax returns and share health insurance, for example. For many older couples, legal separation offers several tangible benefits that wouldn’t be available with divorce. Ending a marriage could prevent a spouse from collecting certain types of government benefits as well.
A legal separation provides many of the benefits typically associated with divorce without permanently ending your marriage. If at any point you and your spouse decide to reconcile and try married life again, you simply file a petition with the local family court to have your legal separation order withdrawn.
What Does Legal Separation Require?
While legal separation can offer several advantages over divorce, it is important to understand that a legal separation will require the spouses to address many of the same issues that would have to be worked out in a divorce. A legal separation requires property division, a difficult process that must adhere to California’s strict community property statute. Additionally, the couple must assign responsibilities for assets and debts. If they have minor children, they must also develop a custody and child support agreement. If you plan to use legal separation as an alternative to divorce, you must be prepared for the time and effort it will require to complete.
Once you have a legal separation order in hand, you and your spouse can start living almost entirely separate lives while retaining the practical benefits of marriage. There is no waiting period for legal separation, but there is a mandatory six-month waiting period for divorce. If you and your spouse legally separate and later decide to formalize your divorce, you would simply file your divorce petition, complete a six-month waiting period, and attend a final review of your divorce terms. Unless either of you has experienced significant life changes following your legal separation, the terms of your separation will likely carry over to your divorce.
In the event you and your spouse decide to reconcile, ending a legal separation is as easy as petitioning the court to rescind your legal separation order. You cannot cancel a divorce in this way. Once you finalize your divorce, you and your spouse must abide by the terms of your divorce order.
What to Expect in Legal Separation
While a legal separation spares you and your spouse from the finality of divorce and allows the two of you to retain the benefits legal marriage offers, you must prepare for an extensive process. You and your spouse must essentially cover everything you would need to address in divorce proceedings. While this can be arduous, it is necessary, and it’s worth the effort to get it right no matter how you and your spouse move on after the legal separation. If the two of you reconcile, it’s simple to petition the court to withdraw your legal separation order and return to married life. If you decide to proceed with divorce, you will have already addressed the issues that divorce would require you to address.
Legal separation is not as final as divorce, but it is a very involved and detail-oriented process. You should have legal counsel you can trust as you begin the legal separation process. Your attorney can assist you in navigating every phase of your case. Depending on how agreeable you and your spouse are toward one another, it’s possible to draft your separation order privately, reaching more agreeable and personalized terms than a judge could offer. However, you may need to proceed with litigation for some aspects of your separation.
Similar to divorce, it is not possible to resolve matters related to child custody or child support privately. If you and your spouse are legally separating and the two of you have children under the age of 18, you must resolve all custody and child support issues through the court. The family court system of California has a legal obligation to protect the best interests of children. A judge must review your parenting plan and determine child support if you plan to file for legal separation.
Tips to Get the Most Out of Legal Separation
If you and your spouse plan to try legal separation, the right attorney will make a significant difference in the quality of your experience with the process. You and your spouse must address the same issues you would need to handle in divorce proceedings, and this can take some time. Once you complete separation, what you do next comes down to your personal needs and goals. When couples use legal separation as a cooling off period, this is a good time to take advantage of marriage counseling and family therapy. The space provided by the separation can make it easier for the family to manage the stress of these sessions and reevaluate their needs and goals.
It’s also a good idea to revisit your finances and estate planning during legal separation. In the event something happens to you during your separation, you may not want your current estate plan to stand. You should consult your attorney if you have any doubts about your current estate plan and how you can adjust it to reflect your new reality.
If you and your spouse are using legal separation as an alternative to divorce, it is important to keep a few things in mind. First, legal separation does not end your marriage, so neither of you can marry new partners. While many separated spouses will carry on new relationships, they cannot remarry their new partners unless they shift their legal separation to a divorce. If the two of you do eventually divorce, you may have already covered a lot of the issues you would typically address in divorce proceedings, but you may need to resolve several lingering issues once your marriage contract is over. For example, if the two of you shared health insurance, you would need to establish separate policies after finalizing your divorce.
Do I Need a Lawyer for Legal Separation?
Many people assume that legal separation is an easy alternative to divorce. While legal separation is generally easier to complete than divorce, it is still a difficult, time-consuming, and expensive process. If you want to get the most out of your legal separation, it is best to approach the situation with the support and guidance only an experienced family law attorney can offer. The Khalaf Law Group offers comprehensive and compassionate legal counsel to clients throughout the Pasadena, CA area, and we can help you with your separation.
The right attorney can help you approach any family law matter with confidence and peace of mind. If you have concerns about how to best approach your divorce, or if you think that a legal separation would be better suited to resolving your situation than a divorce, we can help. Contact Khalaf Law Group today and schedule a consultation to learn more about our legal services.