Under some circumstances, a viable alternative to dissolution of a marriage (divorce) or domestic partnership termination is legal separation. Legal separation is sometimes a solution for couples that are questioning whether or not a divorce is what they really want. Legal separation may also be a good alternative for spouses or domestic partners that do not want their marital status or domestic partnership to be severed for religious, financial, or other personal reasons. Spouses retain their status as married even if legal separation is completed. In other circumstances, legal separation is the only option for an initial filing of a case because the parties are unable to meet the residency requirements for the state of California or the County in which they currently reside.
Similar to an action for dissolution of marriage, legal separation actions give the Court authority to determine issues of the marriage such as custody, visitation, support, and property characterization, valuation, and division. A legal separation cuts off each spouse’s community property rights in the other spouse’s income and assets accrued after the date of separation. Likewise, each party’s debt accrued after separation is his/her own.
As a result, legal separation may be a practicable interim or final option for spouses enduring marital difficulties.
Unlike a judgment for dissolution for marriage, a judgment for legal separation can only be entered if both parties consent to it, or if the non-filing spouse fails to make a general appearance in the case and the filing spouse requests a legal separation action. See Family Code §2345. Therefore, if one spouse requests legal separation and the other spouse requests dissolution of marriage, legal separation cannot be granted and the Court will enter a dissolution of the marriage.
Parties considering a legal separation should be aware that legally separated spouses or domestic retain their marital status and, therefore, are unable to remarry.
Benefits of Legal Separation
Some reasons for choosing legal separation may include:
- Retaining marital status.
- Maintaining a marriage for religious reasons.
- Providing a chance for couples to experience what a divorce would be like.
- Ability to continue receiving the other spouse’s insurance benefits.
- Ability to retain military benefits and/or tax benefits.
- Protecting certain social security benefits.
- Ability to have orders made by a judge without meeting the residency requirements necessary for a dissolution of marriage.
Aeschleman Law is located in San Jose and serves Santa Clara, Alameda, and San Mateo Counties. Call us today for an initial consultation at (408) 724-8930. You may also contact us by filling out the form on the bottom of this site.