The three ways people use the court system to end a marital relationship are annulment, divorce and legal separation. Both annulments and legal separations are uncommon. A legal separation does not end a marriage. It’s for couples that don’t want to get divorced but want to live apart and make binding decisions on financial and parenting issues.
Several states don’t allow a legal separation. California does. The process for obtaining one in California is virtually identical to the process for obtaining a divorce. The only real difference is that you ask the court to grant a legal separation rather than a divorce. As in a divorce, complete resolutions will have to be reached (by agreement or at trial) of spousal support, child support, a parenting plan and division of assets and debts. When a legal separation is granted, all these areas have been worked out and formalized with court orders but the couple is still married.
Because you are still married under a legal separation, you cannot remarry (unless you get a divorce first).
The filing fee is the same as for a divorce (currently $435). If after the legal separation is granted you decide you want a divorce, you will have to file a new case and pay a new filing fee. The divorce will be simple to accomplish if neither of you contest any of the provisions of the legal separation.
Why Get a Legal Separation?
Here are the main reasons that couples sometimes opt for one rather than a divorce:
- It allows a couple to have more time to see if a divorce is really what they want, while accomplishing a complete court-ordered separation of their finances.
- If there is concern about financial impropriety, a Legal Separation does not have the 6 month waiting period required for a divorce;
- A divorce may be unacceptable for religious reasons.
- It may be possible to keep one spouse under the other’s health insurance coverage. A divorce severs this possibility. However, many if not most health insurance policies do not extend coverage to legally separated spouses.
- It may preserve the right to receive social security survivor benefits.
- It keeps the marital clock running in order to meet the ten years of marriage required to qualify for social security spousal benefits.
- It may preserve the right to receive certain retirement benefits or military benefits.
- The couple can continue to reap tax benefits of marriage, such as being able to file with the status of “married filing jointly.”
- It may limit liability if one spouse hasdebts or has had reckless behavior.
- The couple may not have been in California long enough to meet the divorce residency requirements.