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.

Commencing a Divorce or Legal Separation

Once you have decided to file for a divorce or legal separation, whether you retain an attorney or represent yourself, you must file a Summons and Petition. Actually, if you are represented by an attorney, he or she will do it for you. If there are minor children involved, you must also file a Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act. All Family Law Forms are available through the Sacramento County Superior Court or the Judicial Council Forms website to download.

The Petitioner (person filing the Summons and Petition) must pay a filing fee of $355.00 to Sacramento County Superior Court unless they qualify for a fee waiver under the low-income guidelines. If you cannot afford to pay the filing fee, download the Information Sheet on Waiver of Court Fees and Costs. By the way, there is absolutely no advantage in being the Petitioner or Respondent, whether you are the one who files or are the one who is served by your spouse.

Once the Summons and Petition have been filed, the opposing party (Respondent) must be served. He or she can be served by any person over the age of 18 who is not a party to the legal action. That's any adult except for you. Most people have a process server or the County Sheriff serve the opposing  party. the cost is usually about $25 to $50. Some people have a family member or friend serve the papers in order to save the fee, but this can lead to problems if the other side claims they never received the papers.

In addition to serving a filed copy of the Summons and Petition, and Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act if appropriate, you must also serve a blank form Response for the Respondent. Once this has been completed, the person who served the Respondent must complete a Proof of Personal Service to be filed with court.

 When filing any court papers, you should present the original and two copies to the Clerk, and they must be two-hole punched at the top. The Clerk will keep the original for court files, and return two endorsed copies to you. One is for your records, and the other is to serve on the opposing party. Once the opposing party has been served, he or she has 30 days within which to file their Response. 

So that's how a divorce or legal separation is started. The hard part comes later. You can also get help in filling out forms at the Self-Help Center. Every county has one, and they are valuable in explaining forms and procedures if you are representing yourself and don't understand. But if you are represented by counsel, then all of this will be taken care of by your attorney. In my next post I'll begin to explain disclosures and discovery.