legal separation and divorceThere’s a fairly common misunderstanding that if you plan to get a divorce, maybe you should also get a legal separation.  It seems to come from the idea that if you need financial protection or assistance during the divorce, maybe a legal separation can provide it.  So does it make sense to get both: legal separation and divorce?

Most people have a pretty good idea of what a divorce is.  But what is a legal separation?

Legal Separation and Divorce

A legal separation is exactly like a divorce, except you are not divorced at the end of it.  Just like in a divorce, you need to work out spousal support and a division of property and debts (and, if you have minor children, a parenting plan and child support).  You still need to file your settlement and a bunch of forms with the court.  In fact, the court filings required from beginning to end for a legal separation are virtually identical to those required for a divorce.  At the end, you’ll be granted a judgment of legal separation.  If what you really wanted was to get divorced, you’ll now need to start over and complete a divorce case (and pay the court filing fee for it).

When you file a case for a legal separation, it does provide a forum to receive temporary orders from the court (say for interim child support and/or spousal support).  But so does a divorce case.  Bottom line: if what you really want to do is get divorced, a legal separation case is superfluous.  A legal separation and divorce will almost certainly waste time and money.

Financial Protection

But what about financial protection and assistance?  If you are splitting up or have already done so, ideally you’ll negotiate some interim financial arrangements that will last until the divorce goes through.  If you have trouble doing this, maybe a divorce mediator can help.  If no agreement can be reached and interim finances are needed, two options are to start a divorce case and/or have an attorney (or someone else) attempt to persuade your spouse.  If you file a divorce case, you can then file a motion asking the court for the interim finances and a judge will give you a hearing.

According to California law, there are some important financial time fences in a divorce case:

  1. your date of separation establishes when the law considers you have begun living financially separate (non-marital) lives – not the date the divorce is filed or served or the date of the divorce judgment;
  2. child support and spousal support can be ordered by a divorce court to begin no sooner than the date of filing of the divorce case.

So if you need child support and/or spousal support and your spouse is not cooperating to your satisfaction, it may be wise to start a divorce case.  This not only gives you a forum in which (if all else fails) you can ask the court for such support, it also establishes a date from which the support could potentially be paid.  You would need to file and serve the divorce petition before filing your motion asking for support.  The hearing may well not happen until a month or more after your motion has been filed and served.  But a judge could order child support and/or spousal support to be paid retroactively back to the date the divorce petition was filed, if this is was your request.

If it is only child support that you need, another option is to contact the Department of Child Support Services and ask for their assistance.  You don’t need to have started a divorce case to receive their services.

If you are in a hurry to establish a binding division of your assets and debts, legal separation and divorce are two ways to do this.  A legal separation has the advantage of not requiring the 6 month “cooling off” period before it can be granted (as does a divorce).  However, you can also accomplish a binding division by creating, signing and having notarized a Marital Settlement Agreement, which is a contract setting out your division.   The Marital Settlement Agreement then is normally submitted to the court and incorporated into your divorce judgment so that its provisions are not only contractual obligations but also orders of the court.