Legal Separation and Separation Agreements in California

Learn the differences between divorce, legal separation, and separation agreements in California.

What Is a Legal Separation?

A legal separation in California is an alternative to divorce. Some couples who choose this alternative do so to bring closure to a relationship without ending the marriage completely.

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 child custody, child support, alimony, and property division, which may be reached by an agreement between spouses or by a court, and
  • get a final judgment of legal separation from the court. (Cal. Fam. Code § 2010.)

Like a traditional divorce, when you file for a legal separation, you must allege that you and your spouse have irreconcilable differences or that your spouse is permanently incapacitated. (Cal. Fam. Code § 2310.)

The legal process for divorce and legal separation are similar in that if you can't agree on divorce-related issues, the court will step in and decide for you. Additionally, any orders the judge issues in a legal separation have the same power as if issued in a divorce. However, a key difference between legal separation and divorce is that the couple is still married at the end of a legal separation, and neither spouse can remarry until the court, upon a spouse's request, issues a divorce.

Why Choose Legal Separation?

Couples may choose a legal separation for various personal reasons. Some couples practice a religion that forbids divorce. In some families, spouses choose to remain married because they have minor children. For others, eliminating the social shame of being labeled a "divorcee" is more important than the ability to remarry someone else later on. Others choose legal separation for a practical purpose, such as the desire to maintain one spouse on the other's health care plan (though if you're considering legal separation for health insurance purposes, make sure that a legal separation doesn't constitute a disqualifying event under your plan.)

One of the more common reasons couples request a legal separation is that they can't meet the state's divorce residency requirements. They don't want to wait for orders on divorce-related issues, like child custody or property division. When you file for divorce in California, you must demonstrate that, before filing for divorce, at least one of the spouses has lived in the state for no less than 6 months. Additionally, you must have lived in the county where you're filing for at least 3 months. Under California law, a legal separation does not require couples to meet any residency requirements before filing. (Cal. Fam. Code § 2320.)

The decision to file for a legal separation rather than a traditional divorce is private, and often requires the spouses to work together to meet the family's needs.

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 custody or visitation (if there are children), property division, and alimony. However, unlike obtaining an official "legal separation," you don't have to go to court to enter into a separation agreement with your spouse.

A separation agreement allows couples to address important issues that will come up during their separation period, including:

  • where the children will live
  • when the children will spend time with each parent
  • how the couple will pay living expenses, such as rent or mortgage payments, utilities, taxes, health care costs, and groceries during separation
  • whether either spouse will pay child support and alimony during separation
  • how the couple will manage assets (for example, bank accounts or investments) during the separation period
  • whether the couple will divide or sell any property during the separation period, and
  • how the couple will treat property and income obtained after the date of the separation (the court usually treats post-separation income as separate property of the spouse that earns it, but couples may want to make sure that provision is in writing, so there's no confusion later, or couples can agree to treat it differently).

While a separation agreement is a formal contract and binding on both spouses, it does not have the same effect as a court-ordered legal separation or divorce.

Should I Hire an Attorney?

A separation agreement is the result of a negotiation between spouses, which can occur at your kitchen table, in a mediator's office, or through attorneys for both sides.

Spouses may resolve some simple matters directly, without any legal help (for example, where the couple has minimal property, few debts, and no children), but for most people, negotiating and drafting a comprehensive agreement that will hold up in court is difficult. Because the decisions made in a separation (or divorce) may have serious consequences, it's best to hire an attorney who can protect your rights and draft a valid agreement.

In addition, communicating with someone you're separating from can be challenging at best. If your marriage is ending, you and your spouse probably weren't communicating very effectively before the breakup, and it's not likely to get better now. Although some spouses remain friendly and reach agreements easily, most separating couples can't expect to get too far in a one-on-one discussion before emotions boil over and get in the way of a resolution. Most couples need professionals that can create a buffer and negotiate with the other side.

If you need help drafting a separation agreement, or you have questions about whether you should pursue a court-ordered legal separation or a divorce, you should consult with an experienced family law attorney who can help you decide how to proceed.

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