In California family law cases people often confuse legal separation and date of separation but these two topics are distinct legal concepts in family law proceedings. If you have an issue regarding either one of these in a California family law case it is important to speak with an attorney regarding the legal rights and options available to you.
LEGAL SEPARATION
A legal separation resolves all of the legal aspects of a divorce except that martial status is not terminated. Put simply this means that neither spouse can remarry or enter into a new domestic partnership but all the remaining issues of a divorce are handled (custody, asset and debt division, child support, etc…).
People wish to obtain a legal separation in place of getting divorced for a variety of reasons. Often people wish to keep their marital status but live separately and apart. Many people have religious beliefs that do not allow divorce, or some wish for one spouse to retain health insurance coverage under the other spouse’s policy, and others just want to be apart and consider whether they truly want a divorce.
A legal separation will provide the legal framework for a divorce should a person decide to proceed with divorce after a legal separation. The only issue to resolve after a judgment of legal separation is termination of marital status.
BENEFITS OF LEGAL SEPARATION
There are many benefits to a legal separation that make it preferable for some people over a divorce proceeding.
To be eligible for a dissolution in California, an individual must reside in this State for at least 6 months. There are no residency requirements for a legal separation. This means you can pursue a legal separation while you satisfy the residency requirements and then amend your pleadings to obtain a dissolution of marriage. This also allows you to pursue matters in your case immediately and protect your rights because amended pleadings will relate back to the date the original petition was filed.
Social Security Benefits contemplate the termination of martial status. If spouses are close to the ten years of marriage required for derivative benefits and do not wish to remarry, they may elect to pursue a legal separation to obtain the Social Security Benefits.
Under federal COBRA legislation health insurance is terminated within 18 to 36 months after the marital status is terminated. A legal separation allows health benefits to continue, this is beneficial for people with pre-existing conditions or with serious medical conditions that are covered under their spouse’s plan.
Many people have strong religious beliefs that do not allow them to be divorced. In these cases a legal separation can provide a legal framework of a divorce without actually being divorced.
If you are considering a legal separation or divorce proceedings is is important to speak with an attorney about your rights and available relief.