Legal Separation and Living Separate and Apart
This guide explains the differences between a Judgment of Legal Separation and Living Separate and Apart.
Legal SeparationLegal Separation is an action permitted under the California Family Code where one can obtain a Judgment with similar orders as a divorce including orders as to the children (custody, visitation, and child support), property division (dividing the assets and debt) and spousal support. There is one huge difference: the parties remain married to one another and neither may remarry or enter into a new domestic partnership until a Judgment of Dissolution is obtained (and marital status has been terminated). There are several reasons a party may seek a Legal Separation and not a divorce (Dissolution). The most common reasons being religious reasons and in order to maintain health insurance.
Living Separate and ApartIn California, the Family Code provides that all property acquired by a married person during marriage is community property (FC 760). This seemingly simple code section can have a huge impact on what a spouse will receive as their equal share of community property where the value of the property fluctuates greatly in a relatively short period of time. The key fact being a determination as to when was the "date of separation"? Recently, The California Legislature enacted Family Code Section 70 taking effect 1/1/2017 which defines the "date of separation" to mean "the date that a complete and final break in the marital relationship has occurred, as evidenced by the spouse's expression of his or her intent to end the marriage and conduct that is consistent with that intent..." The section intends to ensure the Court takes into account all evidence in determining the date of separation. Practically speaking, this statue allows spouses to declare themselves to be separated, but still be able to have some flexibility of living in the same household if needed (for example, for financial reasons or if they wished to raise their children under one household). If your marital estate has an asset with values that fluctuate greatly at or near the time your marriage was ending, you should invest in consulting with an attorney and obtain up to date information on this area of law.