Legal separation is very similar to a divorce with one very important distinction – that the parties remain legally married. You must file the same documents that you would for a divorce, pay the same fees to the court, and have your spouse properly served with a Summons and a Petition, as well as any other pertinent documents. As with divorce proceedings, orders will be made concerning child custody and visitation, child support, spousal support, division of community property, and attorney fees. The only differences are that 1.) you are not required to wait out the statutory 6 month and 1 day waiting period for judgment to be finalized, and 2.) once judgment of legal separation has been entered, you are not free to remarry because your marital status has not been terminated. You remain married.
There are varying reasons why couples choose legal separation over divorce. Some are very personal reasons, such as religion. Some faiths frown upon or even do not allow their members to divorce. Other people may choose legal separation for purely practical reasons, such as when one spouse has health insurance or pension benefits through their employer, and if they divorce, their spouse will be left without these vital benefits. Some health insurance plans, however, treat legally separated persons the same as divorced persons in terms of coverage. Legal separation can also provide protection for a separated couple who may be able to reconcile down the road but need to have custody and/or support orders in place while they work things out.
Probably the most common reason people choose to file for legal separation instead of divorce is that one party may not qualify yet to file for divorce where they live. In order to meet the jurisdictional requirements to file for divorce in California, at least one party must have been a resident of the State of California for at least six months, and a resident of the county they want to file in for at least three months, before filing the papers. These residency requirements, however, do not apply to legal separation. Because you use the same paperwork to file legal separation and divorce, the person that wants to file can start with the legal separation and, once they have met the residency requirements, amend it to a divorce.
One final important note regarding legal separation versus divorce: if you file for legal separation and your spouse requests a divorce in their Response, a divorce will be entered instead of a legal separation. Both parties must agree to a legal separation, whereas only one spouse needs to request a divorce.
If you decide a legal separation would be best for your situation, we are able to assist you along the way, whether through “limited scope” representation or full representation. Give us a call.