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

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.

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