Should I Pursue Legal Separation?

As a divorce attorney in San Diego I am often asked by my clients, “Am I legally separated?” The answer that I give is dependent on the particular facts of the client’s case, but generally the same principals apply. When a family law attorney refers to “legal separation” or “date of separation” the attorney is discussing two separate legal concepts.

First, filing for a legal separation is an alternative to divorce that litigants can pursue if they do not meet the California residency divorce requirements, if they would like orders in place do not want to terminate their marital status, or chose to pursue a legal separation for another reason. In an action for legal separation, the Court can make custody/visitation orders, divide property, issue child and spousal support orders and make any other typical order issued in a divorce case. At the end of the legal separation action the parties will be “legally separated”.

Second, in a divorce matter, the parties must determine their “date of separation”. Although the terminology is similar, the date of separation is a completely different legal concept from an action for legal separation. The date of separation marks the end of the marital community in a divorce proceeding. This means that all property and income acquired by the parties from the date of marriage to the date of separation is generally shared. However, following the date of separation, all earnings and accumulations belong to the parties individually. The Court relies on several factors in determining the date of separation if the parties cannot agree. Typically the date of separation occurs when at least one spouse has the subjective belief that the marriage is over and that spouse’s actions objectively demonstrate that belief. For example, the following actions will indicate separation – living separate and apart, unmingling finances, not celebrating anniversaries/birthdays/Valentine’s day together and no longer performing marital duties.

Whether you are considering pursuing legal separation or divorce, it is important that you understand the concept of separation (in both forms) and how your actions now can impact the outcome of the proceeding. A brief consultation with an experienced family law attorney could save you money, time and an unnecessary battle with your spouse.

If you would like to learn more about “legal separation,” the California divorce process, child support, spousal support, child custody and visitation or property division, schedule a consultation with an experienced family law attorney at Cage & Miles, LLP. Our skilled attorneys can provide you with the knowledge you need to make informed decisions and protect your rights.

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