What is the difference between Legal Separation and Dissolution of Marriage?
A legal separation addresses all of the same issues that would be addressed in a dissolution action, except that, upon the entry of legal separation judgment, your marital status remains intact. Thus, individuals who become legally separated may not remarry unless and until the court dissolves the status of their marriage at a later time.
As California is a “no fault” divorce state, any one party seeking dissolution of their marriage will need to prove only that irreconcilable differences have arisen that have led to the irremediable breakdown of the marital relationship. Because of this fact, even if one party desires a legal separation, if the other party desires to have the case proceed as a dissolution of marriage, the court will dissolve the status of the marriage. Hence, both parties will have to agree to legally separate in order for the court to proceed with entering a judgment of legal separation.
Why choose Legal Separation over Dissolution of Marriage?
There are several reasons why some people choose to proceed with a Legal Separation as opposed to a Dissolution of Marriage. Individuals may choose to proceed with a Legal Separation action for reasons including, but not limited to:
- If the couple firmly believes that dissolving the status of their marriage is a violation of their religious beliefs;
- If one spouse is covered on the other spouse’s company’s health insurance plan and dissolving the status of their marriage would result in the covered spouse no longer being a dependent for purposes of that health care plan. This may, under certain circumstances, result in escalated costs that are overwhelming for the spouse that was previously covered by this plan, especially where that spouse has had severe and recurring pre-existing medical conditions.
- If a retirement package provides a “spouse” or a “surviving spouse” with certain retirement, death, health, and/or other benefits that could not be obtained after dissolution of marriage based on their inability to qualify as “spouses”.
- If the parties recognize the possibility of reconciliation, some couples choose to proceed with a Legal Separation rather than a Dissolution of Marriage to prevent them from needing to re-marry in the event reconciliation occurs.
Filing for Legal Separation until jurisdictional requirements are met:
A legal separation will do many of the same things that a divorce will do. A decree in a legal separation will determine custody of children, support for the children and/or spouse, and virtually every other issue that may arise in a divorce action. The difference between the two types of action is that a legal separation will not end your marriage. In addition, a separation recognizes the possibility that the couple may reunite.
Thus, individuals who are legally separated may not remarry unless and until they are divorced. The terms of the separation agreement can be modified in the event of an actual divorce if necessary.
If you can't (or don't want to) get a divorce, you can ask the judge for a legal separation.
If you get a legal separation, you can ask the judge for orders on things like child support and spousal support, custody and visitation, domestic violence restraining orders, or any other orders that you could get in a divorce.
To get a legal separation, you follow the same basic process used for a divorce. If you ask for a legal separation, you may be able to change to a divorce case later if you meet certain requirements.
Reasons for filing for Legal Separation and converting it later
A legal separation action is also the appropriate action to commence when the filing party has not been a California resident for 6 months or has not been a resident in the county in which the party is filing for at least 3 months. In that case, the party can start the 6 month "jurisdictional clock" running by filing and serving a petition for legal separation and converting the proceeding to one for a dissolution of marriage once the party has met the residency requirements. When done this way, a decree of dissolution can be obtained in 6 months, rather than waiting 6 months to meet the residency requirement and then having to wait a minimum of 6 additional months to obtain a decree of dissolution.
If you have any further questions or need additional information about our Family Law services, please do not hesitate to call (714) 441-5905.