There’s married, and then there’s divorced; but did you know there’s an “in-between” phase, as well?
This is middle ground is called a “separation,” and—chances are—you’ve probably heard of it before. In California, however, couples have the option of taking this gray area one step further, and making it a legal separation.
In a legal separation, spouses are bound by the terms of a separation agreement. This document dictates the terms of a couple’s separation, and ensures everything gets taken care of, during the break.
Here’s what you need to know about legal separation in California, how it differs from a regular separation—and what the Provinziano team can do to help figure out if it’s right for you.
What is a Legal Separation?
Legal separation is a relationship status that bridges the gap between married and “split up,” and is essentially just a really organized—very official—way of taking a time-out from your spouse.
Similar to a regular separation, couples in a legal separation take an extended amount of time away from one another. During this break, they live under separate roofs, have separate routines, and do not interact on a daily basis. They are, however, still technically married.
Unlike a casual separation, however, spouses in a legal separation sign what’s known as a “separation agreement,” prior to their break. This document lays out the terms of their separation, addressing certain rights, duties, and responsibilities, for while they’re apart.
Just like a premarital living arrangement simulates what married life might be like, legal separation offers couples a glimpse into what a divorce might feel like, without actually having to commit, all the way. Giving them the time and space to figure out what they really want.
Separation Agreements 101: Defining the Terms of Engagement
At the end of a divorce, California judges compile their decisions into what’s known as a “final divorce decree.” This document outlines how life will look for the couple, post-divorce, and binds both parties to the decisions that were made during that process.
A separation agreement is a lot like a final divorce order. It outlines the responsibilities of each spouse, and ensures each is held equally accountable for carrying out their duties, while apart. Like a final order, it’s also completely enforceable.
These rules of engagement relieve couples from having to worry about their affairs spontaneously combusting, while apart. This, in turn, allows them to focus their mental bandwidth on what’s actually important: figuring out what they really want.
What a Separation Agreement Can Do
When it comes to drafting a separation agreement, California couples have a lot of flexibility, and can cater this arrangement to meet their family’s specific needs.
Some of the topics commonly addressed by this document include:
- Child Custody—where the child will live, and who gets to make decisions about their care.
- Visitation—a schedule outlining when, where, and how long a non-custodial parent gets to have the children.
- Child Support—who is required to make support payments and how much (as outlined by California’s child support guidelines).
- Property Division—how marital property will be handled during the break (for example, paychecks and the family home), and which assets will remain separate.
- Marital Debt—who is responsible for making payments on outstanding loans and bills.
- Alimony—support payments made by one spouse to the other, in order to help them out (financially), during the break.
This list is not exclusive, and other topics (like, say, pet custody) might also be addressed in this agreement.
Keep in mind that judges will not approve child support unless it meets California state minimums. This is true, even if you’ve both agreed to the arrangement.
What a Separation Agreement Can’t Do
While this document looks, acts, and smells a lot like a final divorce order, it’s not actually the same thing. And—despite the many things it can do—separation agreements do have their limitations.
For example, in California, a separation agreement does not:
- Sever your marriage.
- Undo lines of inheritance.
- Retract health insurance benefits.
- Nullify military privileges.
- Invalidate social security payments.
- Remove you from retirement rights.
We should note that while you’re still (technically) married, California law requires separated spouses to file as unmarried individuals. (Sorry. It stinks, we know.)
In addition, neither will be able to remarry, until a divorce is finalized.
How Can I Get a Legal Separation in California?
In California, the process for getting a legal separation is a lot like getting a divorce. It requires you to file certain documents, give notification, negotiate, and receive finalization from a judge.
If this relationship status interests you, here are the steps you should follow:
- Identify Your Grounds. Similar to divorce, legal separation requires you to tell the court why you want a legal separation. This “why” is called your “grounds,” and it is a required part of filing for separation.
California is a no-fault state, and offers only two grounds for legal separation: 1) irreconcilable differences; and 2) legal incapacity.
- File Your Paperwork. In California, the form for legal separation is the same one as divorce, so be sure to check the correct boxes, when filling this out. Once complete, you’ll need to submit this document to the clerk at your county courthouse, and pay the accompanying filing fee.
- Execute Proper Service. “Service” refers to the obligation you have to notify your spouse that you’ve taken legal action against them. “Proper” denotes the required way of carrying out that notification. If you do not notify your spouse properly, then your paperwork will not be accepted.
- Enter Negotiations. Legal separation is much more amicable than divorce—one that spouses typically agree on, before either files any paperwork. Hence, the terms of this agreement can usually be negotiated out of court, via mediation.
If you and your spouse are unable to reach an agreement, then it’s possible you’ll need to consider a divorce, instead.
Once finalized, your agreement will need to be submitted to the court for review. If your judge approves the arrangement, the terms will then be fully enforceable, and spouses will be required to abide by its terms.
Divorce vs. Legal Separation: How Do I Choose?
On the battlefield of love, both divorce and legal separation serve a particular purpose. One is more permanent than the other, however, making separation more attractive, in certain situations.
For example, you may want to consider legal separation, if:
- You need time and space to figure out if this relationship is really what you want, but aren’t ready to commit to the finality of divorce.
- You do want a divorce, but have moral convictions or religious beliefs that prevent you from getting one.
- You want a divorce, but don’t want to complicate social relationships.
- You have small children, and want to ease them into the family’s new normal before getting a divorce.
- You don’t qualify for a divorce under California’s residency requirements.
Choosing legal separation over divorce comes down to a matter of personal choice. And, at the end of the day, which one is right for you will depend on your unique circumstances.
Are You Considering Legal Separation in California?
Divorce is permanent, and completely severs marital ties. Once it’s done, there’s no going back, meaning you’ll want to be absolutely sure before you begin. If you aren’t, then legal separation might be a good way to find out.
For more questions about legal separation in California—and how this document might work in your situation—we want to hear from you. Call Provinziano & Associates at (310) 237-6179, or get in touch online, and let us help you navigate this important life transition.