Advantages & Disadvantages of Legal Separation

What Is Legal Separation?

Many people find the distinction between a divorce and legal separation somewhat confusing. A divorce is the complete severing of the legal ties between a married couple. Legal separation offers an alternative to divorce. Both divorce and legal separation cases will go through similar processes of property division, custody, and support agreements. However, at the end of a legal separation case, the couple is still legally married.

Separation Agreements & Property Division

When you and your spouse decide to legally separate, you will have to come to the terms of your separation. This process involves separating your financial lives, and if there are children involved, establishing a custody agreement, parenting plan, and/or visitation schedules. With your lawyers' help, you will negotiate this settlement and register it with the court.

One of the most difficult aspects of a legal separation is property division. California is a community property state. This means that a married couple is considered a single community. Therefore, property that is acquired during their marriage or partnership is considered community property. Similarly, any debt acquired is considered community debt.

It is important to note that California also has a quasi-community property designation. This is property or earnings acquired during the marriage or partnership while the couple was living outside the state of California. The theory behind quasi-community property is that if the property would be considered community property had the couple been living in CA when it was acquired, it will be regarded as quasi-community property and will be subject to property division during a divorce or legal separation.

Property that must be divided during a legal separation may include:

  • Houses and other real estate
  • Cars, boats, and other vehicles
  • Furniture
  • Art and antiques
  • Bank accounts and cash
  • Credit accounts and mortgages
  • Retirement accounts and pensions
  • 401(k) plans
  • Certain insurance policies
  • Stocks and investment portfolios
  • Businesses

Typically, gifts or inheritance are not considered community property. Also, if a coupe has a premarital agreement that identifies certain property as separate or individual property, that will not be subject to property division during your legal separation settlement. Separate property that is also not subject to property division is that which was owned before the marriage or before your partnership was registered. Additionally, any earnings you gain from separate property (such as rent on a rental property) also remain individual property.

To learn more about property division during a legal separation, review the California courts website.

Benefits of Legal Separation in California

Divorce is a very final process. Even though a couple has determined that they can no longer live together as a couple, they may not be ready to go through a full divorce. They may wish to legally separate and get the distance they need to make the ultimate decision about divorcing with a clear head.

Many people also choose to legally separate because their spouse needs to retain their access to health insurance benefits. Depending on their situation, getting health insurance as a single person may be prohibitively inexpensive or impossible. By staying married legally, their spouse can keep them on their insurance policy, ensuring they receive the medical care they need.

Yet another reason people elect to legally separate is when they have religious or social objections to divorce. A legal separation allows the couple to live independently of each other without officially divorcing.

Legal separation may also allow couples who have recently moved to California to begin the divorce process sooner rather than later. California requires a couple to have lived in California for at least six months before filing for divorce. Legal separation does not have this same restriction.

Disadvantages to Legal Separation

One of the biggest disadvantages to a legal separation is that you and your spouse remain married. If you want to remarry, you will not be able to do so unless you obtain a full divorce. However, if you decide to divorce, having a legal separation already in place can make the divorce process more efficient as you have already agreed on terms.

Another disadvantage is that if you ultimately do decide to divorce, getting a legal separation first can end up costing you more money. Because you must get a court order recognizing your legal separation, you will be subject to court fees. When you divorce later, you will again have to secure legal representation and have the divorce registered with the courts. Before going through a legal separation, you should consider the likelihood of divorcing down the road and whether or not a legal separation is more beneficial to you than a full divorce.

Always Work with an Attorney

If you are considering a legal separation or divorce in Orange County, you should consult with your lawyer to make sure it is the best decision for you. Every case is different, and your attorney can use their experience to help guide you in making this important decision. At the Burch Shepard Family Law Group, we understand the intricacies of annulment, legal separation, and divorce. Our attorneys are committed to helping clients develop the creative solutions they need to feel more supported during this difficult process. Contact us online to discuss your case.