Divorce vs. Separation: What you need to know
There’s often some confusion about the differences between divorce, legal separation, and practical separation. These things have some significant differences that should be understood before you file your initial paperwork.
Divorce, formally referred to as “dissolution of marriage” by the courts, is the legal termination of your marriage. A divorce returns each of you to your status as single people, with your own property, and makes you free to remarry. It’s important to note that your divorce isn’t effective until your final Judgment has been signed by the Judge. In the state of California, your divorce is not final until at least six months after your initial divorce paperwork is served, even if you finish everything before then.
In legal separation, each spouse is afforded most of the legal rights to their own property. However, you cannot remarry after a legal separation. There are a few reasons some people will opt for a legal separation instead of a divorce: a) they’re not ready for the emotional ramifications of a divorce, but want to separate their property; b) their religion or creed prohibits divorce; c) they want to keep their spouse on their health insurance plan; d) The parties want to stay married for 10 years to qualify for Social Security and/or military benefits; or e) they want to file in the county or state where they live, but they haven’t lived there long enough to file for divorce. E in particular has some legal complexities involved–you may want to speak to an attorney before filing if either or both of these apply to you.
As is the case with divorce, legal separation is not “final” until your Judgment has been signed by the judge. If you file for legal separation, you can still file for divorce later, whether or not your legal separation has been made final. However, a legal separation is not required before you can file for divorce.
Currently, Separate.us does not offer services relating to legal separation. We can, however, direct you to other resources or legal services to help you with this.
“Practical” Separation (aka Date of Separation)
Note: this is usually referred to in court and legal forms simply as “separation”, but we’re calling it “practical separation” here to distinguish it from legal separation – which is very different.
Practical separation is the date when you and your spouse have “broken up”, but before your divorce or legal separation is final. This can be a subjective date, and depends on many factors. If the spouses cannot agree on their date of separation, there are a few facts that might be taken into consideration: when a spouse tells the other that he or she wants to get a divorce; when one spouse moves out of the home; when one or both spouses start dating; when spouses refer to themselves as “single” in social settings, or no longer refer to the other as their wife or husband; when spouses start keeping their finances separate (e.g. opening their own checking or savings accounts), if they had not done so during marriage; when the spouses stop having sexual relations; when spouses stop participating in marriage counseling; when one spouse files paperwork for a divorce or legal separation; etc.
This is in no way a comprehensive list. Ideally, you and your spouse will agree on a date of separation. This is usually the case, but if you disagree you may need to be prepared to prove your case in court.
“Practical” separation starts the clock ticking on some property and support issues. There are some pretty significant legal consequences to your date of separation:
Your date of separation is used to determine the legal length of your marriage. If you married in 2009 and separated in 2015, the length of your marriage is considered to be 6 years, even if your divorce or legal separation isn’t completed until 2017. The length of your marriage is used by the court to determine how long spousal support should last. In a marriage of under 10 years (“short-term marriage”), typically spousal support lasts for ½ the length of your marriage. If you were married for longer than 10 years (“long-term marriage”), spousal support can last a lot longer (in some cases, for the rest of your life!). The length and amount of spousal support in long-term marriages can be subjective and depends on a number of factors. You can read more on the duration of spousal support here.
Generally speaking, after you separate the money you earn or the property you acquire is often considered “separate property”. California is a community property state, which means that any earning you obtain or property you acquire (except something that was gifted to you or inherited by you) is considered community property, and each spouse has a claim to half of it. There are some exceptions to this in unique circumstances. You can find out more about community and separate property here.
Generally speaking, after you separate the higher-earning spouse may be obligated to pay support to the lower-earning spouse. Again, this can be a nuanced thing. Usually something will have to be filed with the court in order to set a “start date” for support. This can either be a written agreement between the spouses for one to start paying support to the other, or an agreement to “reserve” a start date for support (which means support can be made retroactive to that date, and one spouse might end up owing the other for “back support”). If the spouses do not agree to set a “start date”, they can file a formal request for support, which will set a hearing date with the court. Often attorneys will do this to make sure their clients don’t miss out on support by waiting for an agreement. The law does have provisions in place that make it so the court can order child support to be paid back to the date of separation, but this isn’t always done.
It’s important to know that “practical” separation doesn’t give you the same protections that filing and serving your initial divorce or legal separation does. When you file for divorce or legal separation from your spouse, there are official rules, called “automatic temporary restraining orders” (which is kind of a misnomer: it’s very different from a restraining order keeping people from contacting each other). These rules keep spouses from behaving in ways that might hurt the other spouse while your divorce is pending, like making rash financial decisions or clearing out joint bank accounts, or leaving the state with your kids without your permission.
As you can see, these can be pretty complex issues. If you’re not sure whether you want to file for divorce or legal separation, or if you have questions about “practical” separation, you can contact us using the chat feature in the lower right-hand corner of your screen to be connected with an attorney to help you.