When a couple separates before beginning divorce proceedings, it may be unclear how the separation affects their status regarding the division of assets. Technically they’re still married since the divorce isn’t finalized. But they’re no longer living together because of the separation. Here’s what you need to know.
Are There Different Types of Separations in California?
Yes, and the different types affect how and when assets and liabilities are divided.
Trial separation. This is a more informal type of separation. A couple is having difficulties but isn’t sure they’re permanent. They may simply need a cooling-off period, so they move into separate residences. This does not affect them legally as a couple. Their assets and liabilities are mostly still considered community property (except for items already designated personal property.
Legal separation. In California, getting a legal separation is similar to getting a divorce. The couple lives apart and works through the courts to divide assets and liabilities as well as any child custody, visitation, and support issues. However, the couple remains legally married.
People sometimes choose legal separation over divorce for religious or personal beliefs or to maintain health insurance for both spouses. Some couples find significant tax advantages to remaining married and filing jointly, so they separate rather than divorce. Others choose it as they’re not entirely sure they want to divorce but think it’s a possibility, and separation allows them to try it without entirely ending the marriage. It also makes it easier to complete a divorce later, as property and liabilities have been decided and child arrangements determined.
Part of the process to attain legal separation is separating all assets and liabilities between the spouses. That includes income. Once the separation is legally finalized, what was previously community property as defined by California law becomes personal property.
In other words, you’re no longer eligible for half of your spouse’s income once the separation is finalized.
What’s Required to Apply for Legal Separation in California?
At least one of the spouses must be a legal California resident, and the couple needs to provide a reason for the separation. However, because California is a no-fault state, the reason for the separation doesn’t have to be one spouse accusing the other of something. “Irreconcilable differences” is an adequate reason.
A petition for the separation then needs to be filed with the court. It is a surprise to some people that the same form is used for separation and divorce, so be sure to check the “legal separation” box. Once the petition is filed, the case is opened, and a judge issues a summons, which must be answered within 30 days.
Unlike divorce proceedings, which require a 60-day waiting period (sometimes called the “cooling off” period), there is no waiting period for a separation. But just as in a divorce case, the separation becomes legally binding once the court issues its order.
What Are the Disadvantages of Legal Separation Instead of Divorce?
Perhaps the most significant disadvantage is the inability to marry again. While legally married to one person, you can’t marry another. But there are other disadvantages as well.
Even though your finances are divided as part of the separation, you could still be linked as married through creditors. If your spouse begins to damage their credit, it could also affect you. The same applies to taxes; if one spouse doesn’t pay their taxes, the other could be held liable.
If you do while separated and don’t have wills or trusts set up, some of your estate could go to your spouse.
What Is a Separation Agreement?
A separation agreement is a document a couple can draw up to determine the important items in a separation, whether the separation is temporary or legal. It can include custody, visitation, and support terms; how each spouse’s income is treated; how living expenses will be handled during the separation (for example, does one spouse pay everything or do they each handle their own expenses); will there be an agreed-upon alimony payment; how assets such as financial accounts and real estate will be handled.
An important thing to understand about a separation agreement is that it’s binding if the couple draws up the document and signs it. But it’s not a legal separation. As noted above, income is entirely separate once a legal separation is finalized. Suppose a couple opts for a nonlegal separation but agrees to consider any income or debts from the time of separation to be personal property, not community property. If the couple doesn’t specify that and agrees to it in a separation agreement and later pursues divorce, the court could count all income and debt during that time as community property.
While it’s possible to draw up a separation agreement without an attorney, issues like these can cause problems later. That’s why it’s recommended to work with an attorney on separations.
What Should I Do if My Spouse and I Are Trying to Decide Between Separation and Divorce?
Call us at 949-542-6209 (Newport Beach) or 714-542-6200 (Santa Ana) for a free 30-minute in-depth case evaluation. Every separation or divorce is unique and has specific challenges and needs, some of which can cause conflict. Either separation or divorce can be a stressful situation. Working with a compassionate, experienced family law attorney to determine the best course of action for your marriage can help streamline the process while moving you forward to the best outcome.