A Legal Separation is in most respects identical to a Dissolution proceeding, with the chief difference being that parties to a legal separation remain married or registered domestic partners (RDP's) remain in a domestic partnership. The same laws and the same procedures apply as with divorce.
The specific advantages and disadvantages of legal separation vs. dissolution depend upon the facts and history of each case. Whether it will best serve your needs requires a thorough review with an experienced attorney. There are a number of good reasons for electing to file for legal separation rather than dissolution. These may be strategic, emotional, economic, and religious. Some examples include:
- Strategic Reasons to File for Legal Separation - Where the requesting party has not met the residency requirements of having lived at least six months in California he or she is not legally entitled to file a divorce action. They are eligible, however, to file for Legal Separation and to seek spousal support therein. That action can later be converted to one for Dissolution after the party has become a resident.
- Emotional Reasons to File for Legal Separation - Particularly in lengthy marriages and for elderly couples, we have found that Legal Separation may be a less traumatic way of disentangling the legal and economic affairs of people while preserving the symbolic value of the relationship. This may feel like a better fit to the participants and for the larger, extended family. Legal Separation can also be a transitional phase or stopping point that allows couples to try out the reality of their intended goal.
- Economic Reasons for Legal Separation - There are significant economic consequences that flow from dissolving the marital status. These are often seen in dealing with health insurance questions. Upon divorce most health insurance that covers a non-employee spouse ends after eighteen months from the date of judgment, and the premiums for those eighteen months cost more than before. New insurance may or may not become available to a chronically ill spouse. Legal Separation allows the coverage to be maintained, often at a great savings relative to replacement insurance. Another common economic reason involves the ability to continue to claim the "married status" in federal and state income tax returns, which may benefit one or both and actually permit the higher earner to contribute a larger amount of financial support which is to some extent subsidized by the government. Other reasons include people who otherwise wish to remain married have to divide their income and estates in order to qualify for state or federal benefits. In order to collect Social Security benefits from the federal government on account of the other spouse's work history, a marriage must last at least ten years (the end of the marriage is defined by the termination of the marital status). Legal separation is a means to allow those ten years, which cost the working spouse nothing, to accumulate before the actual divorce takes place so that the other spouse has the safety net of social security benefits which might otherwise be lost to them.
- Religious Reasons for Legal Separation - Certain faiths, and many people, feel that marriage is a life long vow and find that serious consequences flow from the fact of divorce. These may include ostracism from one's religious community, or simply be a result of one's personal views.
Unlike a decree of dissolution of marriage, the other party's consent and cooperation is necessary in order to successfully use this procedure. It is not uncommon for one party to file a Petition for Legal Separation only to receive a Response from the other party requesting a Dissolution instead.
While the mechanics of Legal Separation are not any more complicated than those of divorce or dissolving domestic partnerships, the reasons and strategies underlying them require you retain experienced counsel to assist you.
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