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.

Dissolution of Marriage vs. Annulment

A judgment of dissolution of marriage recognizes the validity of the marriage and terminates the parties’ marital status. They are then free to remarry as of the date provided in the judgment.

A judgment of nullity is granted only when a marriage is adjudged void or voidable under specific conditions provided by statute. A marriage is void (as if it never happened) in cases of incest and bigamy, and is voidable (valid unless and until the court declares a nullity at the request of one party and following an evidentiary hearing) in cases of minority, a current spouse mistakenly believed to be deceased, unsound mind, fraud, force, and physical incapacity.

A marriage is void in the event of incest or bigamy. The state of California does not recognize marriages between parents and children, brothers and sisters, half brothers and half sisters, uncles and nieces, and aunts and nephews. A marriage is also void where one party was married to another person. In the case of incest or bigamy, any marriage is simply not valid and never was.

A marriage is voidable where: 1) one party was a minor and parental and court consents were not obtained; 2) one party at the time of marriage was of unsound mind; 3) either party’s consent to marriage was obtained by fraud; 4) either party’s consent to marriage was obtained by force; or 5) at the time of marriage either party was physically incapable of entering into a marriage and the incapacity is incurable.

A judgment of dissolution dissolves the existing marriage, recognizing the marital relationship between the date of marriage and the date of termination of the marital status, but a judgment of nullity is retroactive to the date of marriage and no marriage is recognized. It is as if the marriage never took place.

The majority of annulments are granted on the grounds of fraud. The fraud consists of false representations or concealment of facts relating to a matter of substance such that the deceived party would not have entered into the marriage had they known the true facts. So, if your spouse turns out to be lazy and has a drinking problem, or misrepresented the extent of his or her wealth, that would NOT be grounds for an annulment. But if your spouse had no intention of being faithful, or represented that they were capable of having children when they were not, then a court may grant a judgment of nullity.

The difficulty in obtaining an annulment, even with a valid reason, is the matter of proof. It is often difficult to obtain an annulment following a contested trial on the issue when the evidence of fraud comes down to one person’s word against the other. Often, an annulment is granted following a “default hearing” where judgment is granted based on one party’s testimony and the other party does not appear.