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Leslee Newman

How Does a Legal Separation Differ from a Dissolution of Marriage?

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If you are unhappy in your marriage what can you do about it? You could seek a divorce, a legal separation, or a nullity. The process of filing a case with the court is almost identical, but the procedure and the ramifications of filing a legal separation or a nullity instead of a divorce are different.

In California since 1970, we have a “no-fault” system in which there are only two grounds for divorce — “irreconcilable differences” and “incurable insanity.” Irreconcilable differences can encompass a wide variety of reasons, but often means that the spouse applying for the divorce is in a new or better relationship, is being harassed or abused by the other spouse, or wants a different life in another state or country but their spouse does not want to move away. Any of these reasons can create a breakdown of the marital relationship, with required testimony to the court by the petitioning spouse, that the couple can no longer live together.

Why file for a legal separation instead of a divorce? The court forms and the court process of filing for either a divorce or a legal separation are almost identical. In every legal separation or divorce process there are three areas in which choices by the spouses must be made. If any child is under the age of 18, a parenting agreement must be drafted as well as the allocation of child support determined, especially for a child with special needs. Also, spousal support could be an issue if the earnings of each spouse are substantially different. Finally, the personal or real property owned by Husband and/or Wife which is community property must be divided.

However, if you select the legal separation route, you do not terminate the marital relationship. What are the reasons for doing this? They might include the following:

  1. Either husband or wife feels compelled by religious beliefs to remain married even if husband and wife are no longer living together.
  2. A Judgment of Legal Separation enables one of the spouses who may not qualify for health insurance because of a pre-existing condition, or cannot afford to obtain their own health insurance policy, to remain on the health insurance of the other spouse for as long as they are still married.
  3. The Judgment of Legal Separation can divide marital property, provide spousal and/or child support for a minor child or children, divide marital debts, terminate the responsibility of each party to pay for the new debts or expenses of the other party after date of separation, and terminates the liability of one spouse for the other without fulfilling the requirement that at least the Petitioner resides for at least 3 months in the county of the Court’s location and for at least 6 months in the State of California. (However, to terminate the marital status of husband and wife, a divorce/dissolution of marriage must be filed by at least one of the parties who has resided for at least 3 months in the county of the Court’s location and at least 6 months in the State of California.)

Because legal separation or divorce in California is complicated, it is best to seek consultation and/or representation from licensed, experienced, and skilled family law attorneys as well as other licensed mental health and financial collaborative practice professionals.

What Women Should Know About Divorce

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If asking for spousal or child support, you will always receive more money if you are already employed or have a source of income, your husband is earning more than you, and you can show a need for his financial assistance through a request for child and/or spousal support. Thus, it is detrimental to purposefully limit your stream of income, quit your job if not necessary, or downplay your ability to earn because you think you will receive more from your husband.

If you are in a domestic violence situation, and periodically experiencing threats, intimidation, and even physical assault, you should separate from your husband as soon as you are able to do so. You must educate yourself about the domestic violence cycle and know that each incident could become worse physically and psychologically than the last one you experienced. Without assistance, education, and separation, each incident could become more harmful, not only to you, but also to any children living with you. There are domestic violence assistance centers at courthouses in California where family law cases are processed and heard.

Unless you need the protection of domestic violence restraining orders, try not to speak badly about the children’s father. Demonstrate to your children that you still respect and communicate with their father to psychologically and financially support your children, and to let them know that they are most important to both mother and father. In other words, that the children come first.

Be careful about what you say to your children even if your children are teenagers or adults. Try not to align your children against their father and/or other siblings.

If there is no domestic violence, or the need for restraining orders, consider an alternative to divorce litigation, such as mediation or a collaborative divorce. Both you and your husband can meet for a free or reduced fee consultation with a family law attorney/mediator and/or family law collaborative attorney. Together you can consult about the process, the fees of the attorney/mediator and/or collaborator, and make a joint decision as to how you will both proceed. This can help husband and wife to move more quickly through the divorce process, with less emotional, psychological, and financial detriment, and help both parents to reassure the children jointly that you are working together to provide two homes for them in which they can continue to be parented and nurtured by both mom and dad.

Once the divorce or legal separation begins, don’t play games with your spouse. Try to cooperate to gather and prepare the information that is necessary to describe, assess, value, and divide your assets intelligently, amicably, and speedily.

Don’t hesitate to obtain assistance from a licensed mental health professional that you have previously worked with and respect, or find a competent licensed professional to assist you through the emotional and psychological aspects of the divorce process.

Don’t let family members or friends force you into a divorce process that is uncomfortable for you.

One of the biggest compliments I have received from couples who I have mediated or collaborated is that when they go to their child’s school for a meeting with the teacher, the teacher doesn’t even know that the children’s parents are divorced.