The Legal and Financial Difference Between Separation and Divorce
The word “separation” with regard to a marriage has several different meanings which are very different from one another, and the implications of the various types of separations can be vastly different based on what state you are residing in and where, if it all, you are filing for a divorce. Understanding the different uses of the word separation, and specifically how separation works in California, is extremely important as parties contemplate divorce, as separation carries many implications for a divorcing couple’s finances as they proceed towards an ultimate dissolution of the marriage.
“Date of Separation” vs. “Legal Separation”
When one or more persons in a marriage decides that the marriage will terminate, then this is considered the “date of separation.” For reasons explained further below, this date is important because the court will use that date to make determinations regarding divisions of property, among other things. But, for now, it is crucial to understand the difference between the general use of the term “separation” to apply to a married couple who have decided that they plan to end the marriage (even if only one person has made this decision) and a “legal separation” which is a decree that only a judge can provide and which is provided in California as an alternative to a divorce decree, and not as a prerequisite to a divorce (this is different than, for example, New York state where the divorce process typically involves a couple obtaining a legal separation and then converting it into a divorce after a required waiting period).
Significance of the Date of Separation and How to Determine It
Determining the date of separation is important because a court will look to that day as the point at which the marital “community” came to an end. In general, property that is obtained during the period between the date of the marriage and the date of separation will be considered to be part of the marital community and thus subject to equitable division in a divorce proceeding. Thus, if a husband won the lottery on the day before his wife decided she no longer wanted to be married, then the lottery winnings will be considered be part of the marital community and subject to division (courts aim for a more-or-less equal split of total assets between the parties), but if he wins the lottery the day after she decides she no longer wants to be married, then the lottery winnings will be considered his separate property and she will have no interest in them. Similarly, all income earned by either party prior to the date of separation will be considered marital property subject to equitable division while all income earned after that date will be considered each party’s separate property.
As the lottery winnings example shows, in some cases fixing the date of separation can be extremely important. A California court will look at a number of factors in determining this. If one party moves out of the residence, creating a physical separation, this can be considered the date of separation, but only if that party intended to end the marriage (as opposed to “taking a break” from the marriage). Moving out is not necessary, however, so long as there is some evidence that one party made a decision on a certain date to end the marriage, which will be considered the date of separation.
Legal Separation in California
As mentioned above, parties can obtain a legal separation in California as an alternative to a divorce decree. In a legal separation, property is divided among the parties and spousal or child support may be awarded just as in a divorce, but the main difference is that the parties will remain legally married, and therefore they are not free to marry other people. The benefits of a legal separation are that a person can obtain protection for his or her own assets (meaning the other spouse cannot use those assets) and can receive spousal support and child support just like in a divorce, while also receiving the benefits of being in a marriage. For some people, they wish to remain married but separated in order to receive benefits, for immigration reasons, for religious reasons, or in the hopes of a potential reconciliation.
If You Need Assistance With A Legal Separation or Divorce
The Gastelum Law Firm has years of experience in working towards amicable and fair divorce and legal separation resolutions in California, and will work to zealously represent your interests as you go through the divorce or legal separation process. Contact Gastelum Law Firm today for a free consultation with a Los Angeles divorce attorney.