What is a Legal Separation?
A legal separation is an alternative to divorce. Some couples who choose this alternative do so as way to bring some closure to a relationship without having to completely end the marriage. They may choose a legal separation for religious reasons or for some practical purpose, such as the desire to maintain one spouse on the other’s health care plan. If you’re considering legal separation for health insurance purposes, make sure that a legal separation does constitute a disqualifying event under your plan.
With a legal separation you will still have to deal with all the formalities of a divorce, including the following steps:
- file a petition (legal paperwork) for legal separation
- make decisions about custody, alimony, child support, and property division, which may be reached by agreement between the spouses or by a court, and
- get a final judgment of legal separation from the court.
What is A Separation Agreement?
A Separation Agreement is different from the formal process of getting “legally separated.” In California, spouses that have decided to separate may enter into a “separation agreement,” which is a legally binding contract that deals with all aspects of their separation, including issues of child support and visitation if there are children, property division, and alimony. However, unlike a formal “legal separation,” you do not have to go to court in order to enter into a separation agreement with your spouse.
A separation agreement is basically a way for separating couples to address important issues that will come up during their separation period, including:
- where will their children will live
- when the children will spend time with each parent
- how the couple will pay living expenses, including rent and/or mortgage payments, utilities, taxes, health care costs, and the like during separation
- whether either spouse will pay child support and/or alimony during separation
- how the couples will manage their assets (e.g., bank accounts or investments) during the separation period
- whether the couple will divide or sell any property during the separation period, and
- how property and income obtained after the date of the separation will be treated (post-separation income is typically considered to be separate property of the spouse that earns it, but couples may want to make sure that provision is in writing so there is no confusion, or they can agree to treat it differently).
Should I Hire an Attorney?
A separation agreement is the result of a negotiation between spouses. This can occur at your kitchen table, in a mediator’s office, or through attorneys for both sides.
Although very simple cases may be resolved between spouses and without any legal help (e.g., cases where the couples has no kids, minimal property, and few debts), for most people, negotiating and drafting a comprehensive settlement agreement that will hold up in court is very difficult. In these cases, it’s usually worth it to hire an attorney who can help to ensure that your rights are fully protected.
In addition, communicating with someone you’re separating from can also be difficult. In some situations, the couple remains friendly and can reach agreements pretty easily. But in most cases, couples need professionals to help them communicate, understand their legal rights, and draft the settlement document.
If you’re going through a separation and have questions about your legal rights, you should contact an experienced family law attorney for help.
