Separated but not legally separated:
Many people leave their partners on a trial basis and are living separately; however, they want a trial separation to see whether they can work things out. They often wrongly assume that after they leave, they are “legally separated.” That is incorrect. The couple may even have an informal agreement on how to divide their marital assets, time with their children and what spousal and child support will be. They go on with their lives not realizing that there is still an argument that what they received, by agreement, is still jointly owned and subject to future division. In this instance, the parties have “separated;” but they are not “legally separated.” A legal separation is obtained only through a Court order.
What is legal separation?
A legal separation is a Court order that divides the couple’s marital assets, their time with their children and determines the amount of child and spousal support. Essentially, a legal separation is similar to a divorce in terms of the legal process and cost; however, a legal separation does not return the parties to the status of being single. The couple is still legally married and if they want to marry someone else, then they must file for a divorce.
Why file for a legal separation:
Under certain circumstances, someone may want to file for a legal separation. A party may not have been in the State and/or County long enough to meet the residency requirement for divorce. One party may be uninsurable and may need to stay insured under the other party’s health care insurance. A party may want to keep accruing the benefits of the other party’s social security. A party may be very religious and divorce may be prohibited or frowned upon by their religion. Or a party may want to legally separate for a while with a goal towards seeing whether reconciliation is possible. However, despite what you want, the other side can disagree and respond by filing for divorce. When that happens, there will be a divorce and not a legal separation.
Why file for divorce:
A divorce is final. You become single. You receive your share of the marital assets and debts. You can re-marry and are no longer legally tied to the other party. Although if you share children, there will probably be continuing contact with the other party.
Cost of a legal separation versus a divorce:
The Court filing fee is the same for legal separation or divorce. As far as attorney fees are concerned, the cost is also the same. However, if you first file for a legal separation and then file for a divorce after the Judgment has been entered, you will incur more attorney fees as it will essentially be two litigation cases.
What happens if I file for legal separation and, before the judgment is entered, I want a divorce?
It is easy to change a filing for legal separation to a filing for divorce, provided the Judgment has not been entered by the Court.
What happens if I get a legal separation and then want to marry someone else?
In this instance, you would have to file a new action for divorce and pay another filing fee. Even though you are “legally separated,” you still have to disclose your assets, debts and income all over again, regardless if you have reached an agreement as to the division of your marital assets and debts.
COMPARISON OF DIVORCE AND A LEGAL SEPARATION
DIVORCE | LEGAL SEPARATION |
File with the Court to get a Court Order | File with the Court to get a Court Order |
Pay a filing fee | Pay a filing fee |
Residency requirement to file | No residency requirement to file |
Have to disclose your assets and debts | Have to disclose your assets and debts |
Have to disclose your income | Have to disclose your income |
Discovery may be done | Discovery may be done |
Property gets divided | Property gets divided |
Child support may be ordered | Child support may be ordered |
Spousal support may be ordered | Spousal support may be ordered |
Waiting period to get Judgment of Divorce Separation | No waiting period to get Judgment of Legal |
Other party cannot stop you getting divorced separated and can file for divorce | Other party can stop you getting legally |
Single after the Judgment of Divorce so you can remarry | Married after the Judgment of Legal so you cannot remarry |
Termination of spousal health care coverage | Continuation of spousal health care coverage |
Termination of social security benefits | Continuation of social security benefits |
No medical or financial decisions for other | Medical or financial decisions for other |
Remarry if you want to be married to other party | Still married if you want to reconcile |
A Certified Family Law Specialist, or CFLS, is an attorney who has obtained certification in the standards of California family law and demonstrated optimal legal competence. Attorneys who obtain this certification have specific expertise in all aspects of family law, which includes divorce or the dissolution of marriage, child and spousal support, child custody, and temporary restraining orders, among other areas of emphasis.
Not every attorney practicing family law has obtained this certification. In fact, the designation remains relatively rare—there are fewer than 2,000 CFLS attorneys in California and fewer than 200 in San Diego.
When you work with JWB Family Law, you can rest assured that your personal family situation and concerns are being handled by a team that has the specialization and expertise you need to bring your issues to resolution.