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WHY Should I Consider a LEGAL SEPARATION?

Q. My Wife has filed for legal separation. Is this something that I should consider instead of divorce?


TIP: A Judgment of Legal Separation can only granted where both parties agree and so consent to it. Family Code section 2345. This means that you cannot be forced, over an objection for any reason, to accept that outcome. Still, if you fail to file a Response within thirty days after service of the Summons and Petition for Legal Separation, a default judgment for Legal Separation can be entered against you. Be careful to check the correct boxes on the Judicial Council Form FL-120, so that you don't inadvertently ask for one. DO check the box at left below the word RESPONSE, but be careful NOT to check the box to the right of the word RESPONSE ("and REQUEST FOR") so that it doesn't inadvertently look like you too are requesting it. However, even if you don't agree to it, while the case is pending courts can still issue orders for temporary child and spousal support.

My recommendation for a Petitioner (i.e., party who files first) who prefers a Legal Separation but isn't sure whether the other spouse or domestic partner will agree to it is to add the words "In the Alternative" in parentheses after the "Dissolution of Marriage" box in the caption of Judicial Council From FL-100. This assures that if you later learn they are objecting to a Legal Sep, the action will effectively become one for dissolution of marriage rather than possibly being dismissed entirely later for lack of this consent. Also remember, if you are the Respondent (i.e., the party who files second) and you don't want a Legal Separation but you do want a divorce, check the Dissolution box on the FL-120. In my experience, 75% of the petitions that begin as a Legal Separation are converted into dissolutions by reason of the 'request' boxes that the other party checks when answering the petition - meaning, if you want a Legal Separation, you may find yourself getting divorced instead.

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There are important advantages to proceeding with a Legal Separation instead of a divorce in some cases, and in my opinion they can be used as a forward thinking and respectful way to end a lengthy relationship in ways that may help the other party live with greater dignity and more financial options.

Unlike a decree of dissolution of marriage, the other party's consent and cooperation is necessary in order to successfully use this procedure. It is not uncommon for one party to file a Petition for Legal Separation only to receive a Response from the other party requesting a disso instead. Unfortunately, in my experience people who may not be talking at the time of break up miss opportunities to explore options that would serve them both better. Deciding how to respond to a Petition for Legal Separation, which occurs early on at the rawest point of breakup, is one of those moments where people have a choice to think bigger than what the hurt of separation usually allows.

A Legal Separation is in many ways identical to a Dissolution proceeding, with the defining difference being that parties to a legal separation remain married and registered domestic partners (RDP's) remain in a domestic partnership. The same laws and the procedures apply as with divorce. However, the advantages and disadvantages of legal separation vs. dissolution very much depend upon the facts and history of each particular case.

There are a number of good reasons for electing to file for legal separation rather than dissolution. These may be strategic, emotional, economic, and religious. Examples include:

  • Strategic Reasons to File for Legal Separation: In order to file for certain types of orders, like spousal support, an underlying action must be pending. Often this is a Petition for Dissolution. Where the requesting party has not met the jurisdictional requirement of having resided for six months in California, they are not legally entitled to file a divorce action. They are eligible, however, to file for Legal Separation and seek spousal support therein (and any other orders they could request in a Dissolution action).
  • Emotional Reasons to File for Legal Separation: Particularly in lengthy marriages and for elderly couples, Legal Separation may be a less traumatic way of disentangling the legal and economic affairs of people while preserving the symbolic value of the relationship. This may be a better fit for the participants and their extended family of children and grandchildren. Legal Separation can also be a transitional phase or stopping point that allows couples to try out the reality of a different kind of relationship.
  • Economic Reasons for Legal Separation: There are significant economic consequences that flow from dissolving the marriage itself. These are often seen in dealing with health insurance questions. Upon divorce most health insurance that covers a non-employee spouse ends after eighteen months from the date of judgment, and those eighteen months cost more each month than before. New insurance may or may not become available to a chronically ill spouse or one with significant pre-existing conditions. Legal Separation allows the existing coverage to be maintained, often at a tremendous savings relative to replacement insurance. Another common economic reason involves the ability to continue to claim the "married status" in federal and state income tax returns, which may benefit one or both spouses. Sometimes people who otherwise wish to remain married have to divide their income and estates in order to qualify for state or federal benefits. In order to collect Social Security benefits from the federal government on account of the other spouse's work history, a marriage must last at least ten years (the end of the marriage is defined by the termination of the marital status). Legal separation is a means to allow those ten years, which cost the working spouse nothing, to accumulate before the actual divorce takes place.
  • Religious Reasons for Legal Separation: Certain faiths, and many people, feel that marriage is a life long vow and find that serious consequences flow from the fact of divorce. These may include ostracism from one's religious community, or simply be a result of one's personal views.

By choosing to begin with a Legal Separation - even where it is temporary in the sense that one day the marriage will be completely dissolved in an action for dissolution - people can intelligently and quite compassionately protect and improve the other spouse's quality of life without it costing anything at all, or anything significant.

Thurman W. Arnold, III
Certified Family Law Specialist