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What Is a LEGAL SEPARATION in California?


Q. What is meant by "separation" in California, and is legal separation a good idea?

A. There are two contexts in which the word separation is used in divorce and family law in California: (1) Legal Separation and (2) physical separation. Both are important, but in practice the concept of physical separation has a far huger impact on people's lives.

A Decree of Legal Separation in California is identical for all purposes to a Decree of Dissolution of marriage, with one critical distinction: A judgment for legal separation leaves the marriage (and the marital "bonds") intact. The parties remain married, and so neither can remarry. But for all other purposes, the marriage is effectively dissolved.

There are religious and personal reasons why two people might want to do this, and there are some practical reasons involving most notably health insurance but sometimes job related benefits why two married persons might choose this over divorce.

A decree of legal separation cuts off the creation of community property thereafter, which includes liability for community debts as well. It is possible to divide all property between the parties, to fix all rights and entitlements to spousal support, and to deal with custody, visitation, and child support issues, and yet remain legally married. It requires the consent of both parties, because if either party objects to a legal separation or seeks a dissolution instead, a Judgment of Legal Separation cannot be granted. Even if the parties are in agreement concerning a legal separation, neither is precluded from later seeking to terminate marital status through a subsequent dissolution action. If the parties have reached a legal separation agreement, or if the Court enters a Judgment of Legal Separation, a subsequent action does not undo any of that.

This is a fairly unusual outcome. In my substantial experience, very few parties have been in agreement on this way of resolving their joint affairs and it doesn't usually make sense unless there are unique health, insurance, or religious or familial reasons for not dissolving the marriage.

Need more information about the twists and turns of Legal Separation?