Dissolution of Marriage vs. Legal Separation

Many individuals in an initial consultation ask what the difference is between a divorce and a legal separation. My short answer is when completed a legal separation can accomplish the same objectives as a divorce - orders for child custody and visitation, child support, spousal support, and division of assets and obligations - but in the end the parties are still married. So why, they ask, would anyone want a legal separation? There are several circumstances in which the parties don't want to divorce for financial, personal, or religious reasons but want the benefit of a court order or judgment that declares them separated while addressing the same issues as a divorce.                                                         

In a typical marriage, one spouse has the other spouse covered on their medical insurance, perhaps through their employment at a discounted rate. Upon entry of a judgment of dissolution, the non-employee spouse must be dropped from the now ex-spouse's health policy because they are no longer related. This isn't a family law rule, and cannot be negotiated in a divorce. However, with a legal separation the non-employee spouse might remain on the employee spouse's health plan following judgment. This can be very important for a spouse with a pre-existing condition that might not otherwise be able to obtain health insurance on their own.

If a couple have been married for less than 10 years, they may wish to separate and divide the marital estate but delay a divorce until after ten years has passed in order for one spouse to take advantage of certain Social Security benefits. After 10 years of marriage, a spouse can collect social security benefits on a former spouse's Social Security record under certain circumstances. This may be important for a spouse who has stayed at home to raise children and has not paid into their own Social Security benefits.

If you are a military spouse, you may wish to remain married for 10 years to take advantage of benefits afforded by the Uniformed Services Former Spouse Protection Act.

If religious beliefs conflict with the concept of divorce, a legal separation allows spouses to live separately while maintaining their marital status for religious reasons.

Finally, legal separation allows the parties time to reflect on whether a divorce is what they really want. If they ultimately decide divorce is what they want, the proceeding can be amended to a divorce with existing orders remaining in place.

 There is one other situation not uncommon in California in which the parties might at least initially file for legal separation rather than a divorce. For the California courts to have jurisdiction, at least one party must have been a resident of the state for at least six months immediately preceding the filing of the Petition. If a married person has been in the state for less than the required six month period, they might still file a Petition for legal separation and later amend their Petition to request a dissolution of marriage. It is only necessary they reside in California at the time the proceeding is commenced.

Legal separation may be a valuable procedure for some circumstances, even where it is not possible to save the marriage. A consultation with an experienced family law attorney can assist in determining what is best for you.

Divorce Mediation

I’m Mike Jonsson, and I’m the owner of Sacramento Divorce Solutions, a family law firm located in Sacramento.  I've been a family law attorney since 1993, and a divorce mediator since 1998.  Presently, I limit my personal practice areas to divorce mediation, collaborative practice, the representation of children in family law cases, and to being appointed as a Special Master on custody issues.  Other than when I represent children, I no longer engage in traditional divorce litigation.

Divorce mediation is a process in which a neutral professional, usually an attorney like me, assists and facilitates communication between spouses in their divorce negotiations.  I do this by helping my clients communicate openly about relevant topics, and keeping them focused on the real issues at the core of their dispute.  I also provide legal education on relevant family laws and procedures, and help them develop creative settlement options and solutions tailored to help them each meet their needs, and resolve any conflicts they have on property, support, and custody issues.  Please note that even though I am an attorney and provide legal education, I do not provide legal advice; a mediator is not the attorney for either or both parties, but rather a neutral professional that maintains a fair negotiating environment for both clients.

Mediation typically takes three to six sessions, and each session lasts approximately two hours.  Sessions take place in my office, not at Court, which helps create an atmosphere of problem solving, rather than confrontation.  Mediation is a completely voluntary process, in which all decisions are made by the mutual agreement of both clients.  In this way, solutions can be developed so that both clients obtain a reasonable and fair result in their final agreement.  Mediation is the most affordable divorce process, and unlike a traditional representation, after the payment of a very modest deposit, clients pay for mediation services at the end of each session, which allows them to control their cash flow for divorce services.  My office also handles the preparation, service, and filing of any necessary documents and papers.

In recent years, divorce mediation has been hybridized to take advantage of some of the benefits of collaborative divorce practice, in which I’m also trained.  I now also offer mediation services which can include the use of neutral financial experts, known as 'financial specialists', to aid the parties in developing financial plans, and to minimize adverse tax consequences.  And when custody is at issue, I sometimes recommend the use of a neutral 'child specialist', who is a neutral child development expert who acts as the voice of the children in negotiations for a parenting plan.

Please note that divorce mediation is not the right process for everyone.  In situations involving domestic violence, or other situations in which a level playing field for negotiations cannot be established, divorce mediation is not appropriate, and other processes should be considered.

If you have any questions about whether mediation is the right process for your family, please don’t hesitate to visit my website for more information at www.SacramentoDivorceSolutions.com, or contact me for an appointment at (916) 921-7000.