I think my wife is thinking about divorcing me and I want to protect my assets she also has a lot of debt. Is it better than I file for divorce or legal separation?
Divorce / Separation Lawyer
The main difference between filing for legal separation and filing for divorce is that at the end of a legal separation, you are still married. If either of you, at a later time, wishes to remarry, you will have to go through the process again (filing fees, same forms, same disclosures, same judgment documents) to divorce.
That having been said, people will select a legal separation over a divorce for a number of reasons. Financially, there is no real difference: community property stays community property, community debts, stay community debts. You can allocate/distribute property and debts through your separation decree or your divorce decree. Your date of separation (the date one of you tells the other you are done with the marriage) is the cut off for community assets and debts. People will select separation, often, because of:
- religious reasons
- cultural reasons
- health insurance (although not as common any more, now that most insurance companies will not cover separated non-member spouse anymore)
- new county of residence (filing spouse does not meet the jurisdictional requirements to file for divorce in that county, but intends to live there moving forward)
- may provide a smoother process that allows the spouse who is not ready for divorce to get used to the idea, in a non-combative way.
There may be other reasons, but these are the most common that I have seen. Again, it will not change the "character" of your current assets and debts as either community or separate. Your date of separation will determine future community assets and debts.
I hope this is helpful to you. Good luck.
Since the information provided in your question is very limited and I have not had an opportunity to review all relevant facts, information, and documents, you should not rely on any specific responses to your questions. The information offered here is general in nature given that the slightest bit of additional information could change a specific answer (i.e. we separated 1 year ago and he has been paying all my expenses. Q: Do I owe him that money back? A: Yes. But what if he used money from a community asset, like a retirement account, to pay it back. A: maybe some or maybe none). In short, consult an attorney to review all relevant information so s/he can properly and accurately advise you. This free service IS NOT a substitute for legal advice and should not be considered legal advice at all.
People choose legal separation over divorce for various reasons such as religious or so that a spouse can remain on the other spouse's health insurance. The date of separation with either divorce or legal separation usually marks the end of the community. Any assets acquired or debt incurred after the date of separation is the separate property or separate legal obligation of the spouse who acquired the debt or asset (unless community property funds were used to acquire the property). Filing for divorce or legal separation, however, will not protect you from debts already in existence at the time of filing (or as of the date of separation). You can draft your divorce judgment in such a way that you do not have liability for your wife's debts. Please consult with an attorney so you can make sure you get it right the first time.
Divorce / Separation Lawyer
Here is a link to a great article about some of the differences between divorce and legal separation: http://www.mac-sg.com/divorce-mediation/what-is-the-difference-between-divorce-and-legal-separation/. If you need assistance in preparing the forms, I provide affordable flat rate fees and a complimentary initial consultation. Best of luck.