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.

Evaluating Your Case for Settlement

Once you and your spouse have completed your Preliminary Declarations of Disclosure and served them on each other, you should evaluate your case for possible settlement.  This is where you learn what community assets and obligations exist, along the values for each. You will also learn your spouse's position with respect to the separate and community nature of the assets and obligations.

In reviewing your spouse's Disclosure, make certain he or she has provided all of the information requested and attached appropriate supporting documentation. For instance, disclosure of banking accounts requires providing the branch name and address, account number, and current balance of the account. This statement should be accompanied by a copy of the most recent monthly statement of account, as well as the monthly statement for the month of separation. You should make a list of anything that you think has been omitted.

Next review your spouse's Declaration and check the claimed values of the assets and balances due on debt. Make a note not just of those values and balances that differ significantly from your own, but also note where you substantially agree on values and balances. The more you agree, the closer you are to settlement.

Then make a note of any assets and debts listed that are not supported by documentation. Such as a credit card obligation in a disclosure for which a corresponding statement has not been attached, or a bank account without a supporting monthly statement. If you do not have your own copy of the missing documents and are unable to obtain them yourself, you should insist your spouse provide them. The purpose here is to learn the basis of the other party's claims with regard to the values of property, the balances due on debts, and the basis for community or separate characterization of the asset and debts.

Remember, if you are represented by counsel, he or she is doing this for you. But you should be involved in the process and aware of all of the details. This stage of the dissolution process is often the most difficult and where most of the time is spent. It's where you learn how close or how far you and your spouse are from settlement.

It's also much too complicated to cover in one posting. I will discuss it in more detail later. My point here is that this is the first real opportunity you have to learn the other party's position on the property and debts, and on what issues you are likely to agree or disagree. You also should acquire sufficient documentation on the various assets and debts for which you did not previously have documentation with which you can verify values and gauge whether your own figures are accurate.

Check back in a few days to read more about evaluating your case for settlement, how assets and debts are divided, and making a settlement offer.