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Separation and Legal Separation

What's the difference between a legal separation and a divorce in California?

The primary practical difference between a dissolution and legal separation is that upon the entry of a judgment of dissolution, you can remarry or enter a new domestic partnership.  If you obtain a judgment of legal separation, you cannot remarry or enter a domestic partnership.  If you wish to get remarried after you have a judgment of legal separation, you will need to file a Petition for Dissolution and a new Summons and serve your spouse.  Otherwise, under both a judgment of legal separation and a judgment of dissolution, the court can enter final orders dividing property, debts, assets, as well as make orders for custody spousal and child support, and the payment of attorney's fees.

Legal Separation can also sometimes preserve some rights normally available only to married couples.  For example, some health insurance plans may allow you to continue to insure your spouse, some employers may allow you to keep your spouse as your beneficiary for certain employment benefits.

How is a legal separation different from being separated (“date of separation”) from my spouse?

Many people confuse legal separation with “date of separation.”  A legal separation is a judgment of separation that provides a final division of property and adjudicates all issues as a traditional divorce, except that upon judgment, you cannot legally get remarried or enter a new domestic partnership.  Nearly all states allow legal separations.  Currently there are six states in which legal separation is not an option (i.e. Delaware, Florida Georgia, Mississippi, Pennsylvania, and Texas).

Conversely, the date of separation in California is the date on which at least one party has decided the relationship is over and has taken observable steps to uncouple and live separately and apart from their partner or spouse.  Family Code section 70 governs what it means to be separated.  Specifically, the code states that the “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by one spouse expressing to the other spouse the intent to end the marriage and the conduct of the spouse is consistent with the intent to end the marriage.”  So, not only is an announcement necessary, but actions also consistent with that announcement must occur, such as moving out, opening new bank accounts, closing joint accounts, informing friends and relatives that the relationship is over.  

Courts generally examine each spouse's living situation to determine whether or not you were truly separated. There is no one single step that is required, and no single action is dispositive.  Sometimes even filing for divorce alone is not sufficient if the parties have undertaken no other actions indicating that they are separated.  Nor do you have to move out from your house to have a date of separation.  The courts recognize that sometimes for financial reasons (or harmony for the children), separating couples must remain under one roof, at least for a time, despite ending the relationship. However, if you're still sharing a bedroom, that may be taken as evidence that you're not truly separated and there was “no final break.”

Can you have more than one date of separation?

In short, while some professionals disagree, the general consensus is no – there cannot be more than one date of separation, because the court is tasked with finding the date wherein there is a final and complete break in the relationship between the parties.  Sometimes couples separate more than once before finally calling it quits.  This creates an issue if one spouse acquires property during the period of previous separations and it must be determined whether that property is separate property or community property.  If you find yourself in this situation, it is highly advisable to obtain the counsel of an experienced family law attorney to help you.  At Murphy Family Law, we have experience litigating issues of date of separation and acquisition of property during multiple periods of separation.

Why is the date of separation so important?

California is a community property state.  What that means is that all property acquired during the marriage (between the date of marriage and the date of separation) is presumed to be community property.  There are a multitude of exceptions to this presumption, including property acquired during the marriage that is by gift, bequest, devise, or descent, or the rents and profits from separate property.  Of course, as with all issues in family law, there are even exceptions to the above rule (particularly relating to gifts, and the profits from separate property, such as a business).  In almost all instances, the community property is equally divided between you and your spouse upon divorce or legal separation.  That also includes property you acquired while married and living out of the State of California (called quasi-community property).

Once you separate, the community ceases and thus the property (and debts) you acquire after the date of separation is generally characterized as your separate property.  However, this becomes extremely complex in situations where a spouse owns a business (separate or community either one), uses community funds to purchase items after the date of separation, or incurs debts for the necessaries of living (i.e. living on credit card debt after separation wherein that debt could in some cases be considered a community obligation).  And as we cannot stress enough, there are exceptions to every rule.  As you may be picking up on, characterization of assets and debts is very complicated and nuanced in California and exceptions to the rules abound.

The date of separate is important because it creates a presumption that debts and assets acquired after that date are the separate property of each spouse.  For instance, if you are contributing to a 401(k), those contributions after the date of separation are your most likely your separate property, and if so, they would be awarded to you, while the community property portion of the retirement account will be divided equally between you and your spouse.  And yes, in some instances, separating spouses have won the lottery and inevitably a question arises – were we truly separated?  Sometimes it's more common that one spouse gets a big bonus after the date of separation.  In such an instance you may wonder, do I have to share?  Like most everything in family law, it depends. Was the lotto ticket purchased with funds that could be considered community property (like money that was still sitting in a joint checking account and earned prior to separation)?  Did you earn the bonus from efforts that took place prior to the separation (in which case it may be community) or was it a bonus that was not dependent on your efforts or for future retention (in which case it may be your separate property).  Date of separation is just one piece in analysis of characterizing marital property, but an important one.  Accordingly, we encourage you schedule a consultation to discuss your particular situation to learn about date of separation and characterization of your debts and assets. 

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