California Family Law: Should You File for Legal Separation?
What’s the difference between a general date of separation and a date of legal separation?
A big misconception is that filing for legal separation establishes a date of separation. The date of separation and a Judgment of Legal Separation are two separate concepts.
Per California’s Family Code section 70, the date of separation means “the date that a complete and final break in the marital relationship has occurred.” Community property stops accruing as of the date of separation. The date of separation is when the marriage is over (e.g. someone files for divorce, or someone moves out because the marriage is done, etc.).
In contrast, if you request a legal separation, you are requesting that your marital status remain intact but that all property be divided, and support be established. A party typically files for legal separation when s/he is opposed to divorce for religious reasons, or wants to remain a spouse for continued health insurance coverage (e.g. a preexisting condition).
A Request for Legal Separation is also used when a spouse does not meet the California residency requirements (i.e. a party must be in the state for six months, and the county for three months). In that situation, the legal separation is often converted into a Request for Dissolution after the residency requirements are satisfied.
Unlike a dissolution of marriage (a/k/a divorce), both parties must indicate that they want a legal separation. On the other hand, if only one party indicates s/he would like a divorce, then a divorce will be granted.
Most spouses will want a Judgment of Dissolution of Marriage in which they state their date of separation, not a Legal Separation. Since there is a six month waiting period before marital status may be terminated (i.e. you are divorced and returned to a “single” person), you should make sure you properly indicate which relief you are seeking in your Petition.
Vanessa Soto Nellis is a Certified Family Law Specialist (State Bar of California Board of Legal Specialization), and the Chair of our Family Law Practice Group.
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