Legal Separation and Divorce: What’s the Difference?

When you and your spouse file for a divorce, you are essential asking for a judge to end your marriage, allowing you to legally separate and divide your finances and assets between yourself and your spouse. In contrast, when you apply for a legal separation, you draft a settlement agreement with your spouse that will explain the responsibilities and rights each spouse maintains despite living apart. During this time, you will still remain legally married, however, you will be choosing to live separately.

What is a Legal Separation Agreement?

Many financial professionals suggest that if a spouse is looking to spend time apart from their husband or wife for a period of time that extends beyond a typical trial period, they should probably obtain a legal separation agreement, which will help to resolve issues such as alimony and spousal support, division of assets and debt, and child support and visitation rights.

In some cases, a legal separation agreement can help you to reduce some financial risk. Since if you decide to live separately from your spouse without one, you could still remain liable for any debts and legal issues your spouse is involved with, despite the fact that you may not be living together. A written agreement regarding your separation would limit your liability for debts incurred by your spouse during the time in which you are separated.

Will California Recognize your Legal Separation?

The laws on divorce and separation can vary from one state to another, but each state will typically fall into one of three categories, including:

  • Those which require a legal separation before partners can file for a divorce.
  • Those which neither recognize nor require a legal separation.
  • Those which recognize a legal separation, but do not require one.

Here in California, the state will not only recognize your legal separation but it also does not require one.  It is a choice that you and your spouse will have to make depending on what is best for your situation. Some parties choose to have their marital status remain intact for insurance reasons, others for financial.  It is best to weigh the pros and cons of both before making a decision that can impact your estate.

The Impact of Legal Separation on a Divorce

It is essential to remember that once you have decided to legally separate from your spouse, the decision must be taken seriously. It is a binding, legal contract which some states do recognize to be just as important as divorce. In California, the terms which you may agree to within a legal separation agreement could set a precedence that is difficult to get out of at a later stage. For example, if you agree to your wife living in the home the two of you bought while you were married as part of your legal separation, and continue to make the mortgage payments for that house or home, a judge may demand that you continue doing so after you file for divorce.

This is why many professionals suggest that you should never agree to anything within your legal separation agreement that you would not consider in the process of negotiating for your divorce settlement since you may regret it later. It is also a magnificent and salient idea to speak to a lawyer before you attempt to come to terms with your partner alone. You certainly do not want to sign anything without an attorney’s approval. If you can work things out amicably with your spouse with getting other people involved that is wonderful but you have to be very careful about what you sign and agree to.  It is always best to consult an attorney to make sure that you are fully aware of your rights and the consequences to any provision that you sign.

Minella Law Group Can Help

Our experienced San Diego legal separation attorneys are here to advise and protect your best interests throughout the legal separation process, both in court and through negotiations. If you’ve decided to legally separate, we can advise you and file the necessary legal papers with the court. Contact us today to schedule your no-cost consultation at Minella Law Group.