Some people mistakenly think that because they no longer live with their husband or wife they are “legally separated.” This is not true. The term “legal separation” is a term of art and has a legal meaning beyond simply living separately from your spouse. Sometimes spouses don’t agree on their “date of separation,” especially if they have lived separate and apart for a long period of time before one of them gets around to filing for dissolution of marriage or legal separation. Your attorney can help you determine the “date of separation.”
Whether you want to dissolve your marriage (divorce) or get a legal separation, the case is started the same way: A Petition is prepared and either the “Dissolution of Marriage” box is checked or the “Legal Separation” box is checked. Either way, the process of dividing community assets, determining spousal and child support, and child custody and visitation is the same. The major difference is that at the end of a legal separation case, you will remain legally married to your spouse and you cannot remarry. Since you are technically still married to each other, you may be able to remain on the health insurance plan with your spouse, but it depends on the rules and regulations of the specific health plan and you need to contact the health plan to find out whether you would remain eligible for the plan if a Judgment of Legal Separation is filed.
Most people want a complete break from their spouse, so they choose to file for dissolution of marriage. Some people choose to file for legal separation because, for example, they are not yet emotionally ready to break free of their spouse completely or don’t want to hurt their spouse’s feelings and feel a legal separation is a gentler way to part from their spouse. Some people have religious beliefs that limit their ability to divorce and they choose legal separation instead.
One of the most common reasons to file for legal separation rather than for dissolution of marriage is because a spouse has recently moved and they do not meet the residence requirements to file for dissolution of marriage (resident of California for six months and of county where Petition is filed for three months), but they do not want to wait that long to file, especially if they have reason to know their spouse might be getting ready to file in another county and there is therefore a need to have a proverbial “race to the courthouse” to be the first to file and get the more convenient jurisdiction established.
A legal separation action can later be converted to a dissolution of marriage action, including after a Judgment of Legal Separation has been entered (e.g., if you decide after getting a Judgment of Legal Separation from your spouse that you want to remarry). Also, if one spouse files for legal separation but the other wants a dissolution of marriage, the case will be a “dissolution of marriage” action.
Unless your situation involves the need to file a Petition quickly and you do not currently meet the six-months/three months residence requirements, most clients will benefit by filing for dissolution of marriage from the beginning because it will save the step of having to convert the case to a dissolution of marriage later, thus saving money on attorney fees.
