People often ask "should I file for a divorce or a legal separation?" The answer is, "it depends." Once explained, the differences are so limited; most people are able to quickly decide what is best for them.
So let's breakdown a quick overview of what the divorce process is. The divorce process can be summed up to three to four primary subjects: (1) the termination of the marital status; (2) the division or confirmation of property; (3) the award or payment of support; and (4) custody and visitation of children. While each subject can be subdivided into other issues, it all comes back to these three to four primary components.
So what is the difference between divorce and legal separation? It's simple, the legal separation does all the same things that a divorce does except for the termination of the marital status for the parties. In a divorce, either party can pursue a judgment of and it requires a six-month waiting period. In contrast, a judgment for legal separation requires both parties to consent and it is final immediately upon entry.
A judgment for legal separation leaves the marital bonds intact (Fam. Code §2347); however, the judgment for legal separation can serve as a final judgment for spouses' property rights or support rights, even in a subsequent proceeding to dissolve the marriage or a probate proceeding. (Estate of Lahey (1999) 76 Cal.App.4th 1056, 1058-1059; Prob. Code §78.)
Once a judgment for legal separation is entered, the spouses are for all practical purposes treated as if they are divorced. For example, the spouse's earnings and obligations will be their separate property. (Fam. Code §771.); the spouses may no longer file joint tax returns (IRC §7703 (a)(2).); on some occasions the nonemployee spouse will lose access to any group health insurance coverage; the spouses have no right to intestate inheritance (Prob. Code §78). However, unlike the spouses that get divorced, legally separated spouses cannot remarry. (Fam. Code §2201.)
So why consider a Legal Separation over a Divorce? There are several valid reasons why people choose to legally separate but remain married to one another. Some of the reasons include:
- You and/or your spouse oppose divorce for religious or moral reasons;
- One spouse will soon become eligible for his or her spouse’s government benefits (such as Social Security);
- One spouse may remain eligible for the other spouse’s health care or insurance benefits if they remain married;
- There may be some tax benefit if you and your spouse remain married to one another;
- There may be some estate planning benefit to you and your spouse obtaining a Legal Separation;
- There is a chance the spouses may reconcile after some time apart;
- It may present a less stressful environment to negotiate a separation agreement than to negotiate a divorce agreement between the spouses.
If you decide to remain married and only obtain a Judgment for Legal Separation for specific reasons (such as Social Security or health insurance or other retirement benefits), make sure you read the fine print associated with such benefits or any orders made by the court in connection with the those property rights. Some benefits will specifically exclude legally separated spouses from eligibility resulting in the loss of the expected benefit.
What happens if you later decide you want the divorce? You can later file for divorce but the issues resolved in the legal separation are final (exceptions being support, child custody, and visitation).
In addition to talking to a San Diego family law attorney about which option is right for you, you should consider talking to an accountant, a financial planner, and/or estate planning attorney to make certain you understand the financial ramifications of legal separation versus divorce.