Benefits of Legal Separation


Family Law Attorney in California

Legal separation vs divorce

Are you seeing the quality of your married life on the decline? Not all marriages last the long haul. It’s sad to say, but nothing can be far from the truth. Decisions regarding legal separation versus divorce can be perplexing and confusing if you do it alone.

Assessing some statements below as true or false would give you an idea of your general knowledge of legal separation laws in California.

  1. I have to be a resident of California for at least six months to be eligible to file for legal separation.
  2. Children should always live with their mothers when their parents separate.
  3. I have a bank account in my name; the money belongs to me, and my spouse has no claim to it.
  4. If my partner fails to provide child support, I have the right to refuse visitation.
  5. After I obtain a legal separation, my marriage is no longer valid under the law.

Want to know how you fared in assessing the given statements?  Pat yourself on the back if you answered “NO” to all the statements. You must be doing some reading about legal separation. 

Before making any decision related to your marriage, it is vital to consider the most critical aspects of legal separation. Speak to a competent Santa Rosa CA lawyer specializing in family law to get the right information about legal separation.

What is a legal separation? 

Simply put, legal separation refers to a legal action filed by a married person (or domestic partner) who wishes to stay married (or in the domestic partnership) and hopes to resolve other legal issues. Legal issues include child support, child custody, spousal support, and property division.

What are the key differences between legal separation and divorce?

  • In contrast to a divorce, a legal separation does not result in the dissolution of a marriage or domestic partnership.
  • Moreover, you cannot marry someone else or form another domestic partnership with another person. 
  • If your legal separation case is still pending, you and your spouse/partner may be able to convert it to a divorce if you and your spouse/partner meet specific jurisdictional requirements.
  • Health care and other benefits are continued in a legal separation; these are terminated in the event of a divorce.
  • Spouses or domestic partners are still considered next of kin and can make medical or financial decisions on their spouse’s behalf; divorced spouses are not considered next of kin.
  • In a legal separation, spouses may still be liable for the other spouse’s debts. All debts are dealt with during the dissolution process in divorce.
  • Each spouse has the right to receive property benefits if the other spouse passes away; however, divorce terminates these rights.

 What are the benefits of legal separation? 

Many couples choose to be legally separated than divorced for several reasons.

  • Since divorce cannot be undone, legal separation makes it easier for both parties to reconcile. They can use the time apart for marital and separate counseling to help resolve any marital issues.
  • They share benefits such as filing joint taxes, receiving Social Security payments, and having health insurance coverage provided by one spouse’s employer as part of a family plan.
  • Or, spouses can prepare for divorce proactively. They may find that navigating legal disputes during a separation is significantly easier when no court fees and deadlines are hanging over their heads.
  • Separating spouses in California may enter into a “separation agreement,” which is a legally binding contract that deals with all aspects of their separation, including child support and custody or visitation (if there are children), property division, and alimony. 

So, suppose you and your spouse intend to remain separated for an extended time. In that case, you must have a separation agreement in place to ensure that your respective legal interests are protected. However, a separation agreement does not have the same legal effect as a court-ordered legal separation or divorce.

  • Other couples opt for legal separation because their religion doesn’t allow divorce, or to avoid the negative connotations associated with divorce, such as feelings of shame, disgrace, or failure.
  • Some spouses choose to legally separate until the kids are grown up and then get divorced.

Some questions for you and your partner

At this point, you may be considering that legal separation is the best option for you and your spouse. Be honest in answering first the questions yourself. Then, talk it out together. You may figure out a better alternative.

1. Is it your intention to separate, or are you simply threatening to separate?

Are you enraged at your spouse and threatening separation due to your frustration in your marriage or partnership? 

It is time to stop threatening and take a mature, informed step in the right direction if legal separation is your option.

2. Are you separating with the intention of getting back together later?

The bare minimum for a trial separation is three months, but some couples go as long as six or twelve months. When there are multiple issues between spouses, they will need more time to work through them. 

Couples who have separated but have remained married report greater relationship instability and less marital satisfaction than couples who have never separated.

3. What exactly are the unresolved problems you’re having with one another?

Some who wanted to end a relationship cited emotional distance, a breach of trust, general incompatibility, and infidelity as their reasons for doing so. 

4. Will you continue to live in the same house?

Although most legally separated couples prefer to live in separate residences, doing so is not always possible or practical, especially when the marriage involves small children.

Here are some common reasons why couples still live together after their legal separation: for co-parenting and to protect their children; to allow them to maintain their current way of life while dividing certain expenses and responsibilities such as household chores. 

 5. How do you intend to maintain your family’s unity in raising your children?

It is more beneficial for children if both parents remain actively involved in their lives (assuming that both parents are safe and capable caregivers) and, particularly, if the non-resident parent maintains a close and supportive relationship with their child. When their children are having problems, both parents should listen and provide emotional support and assistance with everyday issues such as homework while also maintaining rules and managing expectations for behavior.

Take a moment to answer these questions yourself. Give each other the space and time to address your concerns as a couple. Respect each other. Consider the long-term consequences of your choice.

We hope that this article has helped you gain some clarity on the benefits of legal separation versus divorce, as well as answered some questions to help you resolve your biggest dilemma so far.

If are you considering legal separation, you can talk to our experienced Santa Rosa CA family law attorneys at Provencher & Flatt LLP understand you and they are ready to help you protect your best interest. 

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