FAMILY LAW ARTICLES
What is the Difference Between Legal Separation and Divorce?
Are you confused about the difference between legal separation and divorce in California? In this comprehensive video, family law attorney John Castellano from Hartley Lamas sheds light on this topic. With over 25 years of experience in family law, he breaks down the distinctions and similarities between legal separation and divorce, helping you navigate the complexities.
If you have questions or need further clarification on legal separation and divorce in California, contact Hartley Lamas using the contact information below. Don’t let confusion hinder your understanding of these important legal matters.
Transcript:
One common question that we get is, what is the difference between a legal separation and a divorce?
Hi, I’m John Castellano. I’m an attorney with Hartley Lamas. I have over 25 years of experience practicing family law.
Difference Between Legal Separation and Divorce
Legal separation and divorce are types of cases. Essentially, you can do everything in a legal separation case that you can in a divorce case except dissolve marital status. Both cases lead to a judgment, and that judgment can provide for division of property, parenting orders, support orders for child support if children are involved, spousal support if that’s appropriate, and other orders—restraining orders—like I said, any type of order except for dissolution of marital status in a legal separation case like you would in a divorce case.
Why File for Legal Separation Instead of Divorce?
So why would somebody file for legal separation? Traditionally, there are a few reasons why people have filed for legal separation.
Jurisdictional Reasons
The primary reason is for jurisdictional reasons, and I think that’s why the legislature created this type of case, legal separation.
In California, in order to be eligible to file for a divorce case, you have to be a resident of the state of California for six months and of the county in which you file for three months. For legal separation, you don’t need to satisfy those jurisdictional requirements. You can be here for one day and file a legal separation case, which makes it much more convenient in order to get assistance from the court in a legal separation case. And so that’s why most people, I think, file for legal separation.
And once you satisfy the jurisdictional requirements for a dissolution case, you can convert your legal separation case into a dissolution case and people often do that.
Emotional Reasons
The second reason that people file, I find, for legal separation is more of an emotional reason, and that is they just aren’t ready, psychologically, to call what they’re going through, a divorce. A divorce just has a heavier emotional sound to it than a legal separation. They’re just not ready to call what they’re going through a divorce yet, and that’s perfectly valid.
They can file for legal separation if they’re not ready to start a divorce case, and that’s okay. And that’s why a lot of people do that.
They need to understand, though, that if the other party is ready to call what they’re going through a divorce, they can respond to the case by converting the case to a divorce case. And we’ll get into that a little bit later, too.
Health Insurance
The third reason that people, traditionally have filed for legal separation is, when I first started practicing law, this was a very common loophole that people would use, and that is that it was common to have, you know, one party ensured by the other party’s health insurance. And if the non-employed spouse covered by the other party’s health insurance had a serious health issue, they would lose their health insurance by dissolving their marital status because they were no longer eligible to be covered by the health insurance.
And so they were at risk for not being covered any longer. And so what they would do is agree to file for legal separation and do that for the purpose of maintaining health coverage for as long as possible.
Insurance companies, most if not all insurance companies at this point have gotten wise to that loophole and have now, as part of their criteria for coverage, have included judgments of legal separation, just as a judgment of dissolution of marriage or divorce used to disqualify non-employed spouse.
So if you’re considering health insurance as a reason for filing legal separation, you should really look into the eligibility criteria on health insurance to make sure that the insurance company hasn’t closed that loophole because they probably have.
Both Parties Must Agree
A couple of other notes worth talking about are the fact that we already kind of touched on, which is the fact that both parties must agree to proceed by legal separation in order for it to stay a legal separation. So in other words, if one party files a petition for legal separation, the other side must respond by agreeing that it proceeds by legal separation in order for it to stay a legal separation case.
If the other party responds by saying, no, I want it to be a divorce case, it becomes a divorce case. So both parties must agree that the case proceeds by a legal separation in order for it to stay that way.
Difference Between a Date of Separation and a Legal Separation
The other question we get quite often on the subject is the difference or the distinction between a date of separation and a legal separation. This is a very common question and people get confused about this all the time.
Legal separation, as we’ve talked about, is a type of case, like divorce or dissolution is a type of case. Date of separation is a legal principle that impacts how property is characterized in a case. And what I mean by that is that there is a community property principle that I think we’ve discussed in other video blogs.
There’s this window of time between your date of marriage and your date of separation, and that the date of separation is the date that’s legally defined as the date when one party has decided that the marriage is completely and finally over and there’s no possibility of reconciling the marriage.
And the significance of that window of time between the date of marriage and the date of separation is, with some exceptions, that when all property that’s acquired between those two dates and all debt that’s incurred between those two dates is presumed to be community property and community debt and divided equally.
So that’s a principle, the community property principle, that California follows for characterizing whether property is community and divided equally or the separate property of either party.
Help with your Legal Separation or Divorce Case
I hope that is helpful. And if you have any questions or want to discuss any of these issues further, please contact us at any of the links or contact information below. Thank you.
