Potential Benefits of Legal Separation vs. Divorce

If you and your spouse have been experiencing tension in your marriage, divorce could potentially arise as a possibility for your near future. However, it is vital that you do not make the decision to divorce lightly, nor should you rush into divorce proceedings in the face of marital problems. Divorce is a complex and stressful process. It is likely to pose significant changes to various aspects of your life for the foreseeable future. In some cases, couples need time and space to reevaluate their marriages before moving forward with divorce proceedings.

Legal separation can effectively provide some of the benefits that divorce can offer without the finality of divorce. While many people conflate legal separation and divorce, they are two very different family law procedures. In a divorce, the couple’s marriage contract is terminated, and the couple resolves many issues such as property division, child custody, and spousal support. In a legal separation case, the couple must also address many of the same issues and will ultimately end up with separate living arrangements, but they remain legally married.

While some may wonder why they should bother with legal separation rather than pursue a divorce, legal separation can offer significant benefits in many situations. If you are unsure how to resolve the problems you’ve recently experienced in your marriage, it’s worth considering the potential benefits of legal separation in California.

Why Remain Married?

Marriage offers several practical benefits, including the ability to file joint tax returns. This can save both spouses significant amounts of money on their tax liabilities. Additionally, there are several federal and state tax benefits only available to married couples. Marriage also offers the ability to share healthcare coverage. If you have employer-provided health insurance, your plan likely allows you to include your spouse in your coverage for much less than two separate policies would allow. For some couples, these reasons could be enough for a couple to prefer legal separation in lieu of divorce.

In some situations, couples may not consider divorce a viable option due to religious beliefs. If a couple’s religion prohibits divorce, legal separation can allow them to establish separate lifestyles while adhering to their religion’s rules. In some cases, a couple may wish to pursue legal separation to handle financial issues while remaining married to preserve their family units, typically until their children are old enough to understand their parents’ situations more clearly. Legal separation can also be appealing to older couples who no longer wish to live together but have no desire to remarry. They could continue taking advantage of shared healthcare coverage, maintain government benefits, and minimize their tax liabilities while leading independent lifestyles.

What Does Legal Separation Require?

Legal separation is a more extensive process than many couples may initially expect, but completing legal separation can offer several benefits. Many couples will use legal separation as a preliminary step toward divorce. The legal separation offers both spouses time to reflect and adjust to new lifestyles. They may ultimately decide that their marital problems are not worth ending their marriage, and they reconcile their relationship. However, if they both decide that divorce is best for them, their legal separation speeds up the dissolution process significantly.

If you believe that legal separation could be advantageous in your situation, you should prepare to address many of the same issues that divorce would entail, including:

• Property division. California enforces a community property law, so all marital property is evenly split between divorcing spouses. If you legally separate from your spouse, the two of you must settle property division according to California state law. It’s possible to do this through collaborative divorce negotiation or mediation, but you can also have a judge settle property division.
• Child custody. While some legally separated parents will remain in the same household to maintain normalcy for their children, this isn’t always feasible. Legal separation may require the parents to draft a custody order that assigns custodial rights and child support obligations.
• Spousal support. If one spouse is financially dependent on the other, spousal support may come into play in legal separation proceedings. Spousal support, also known as alimony, is support paid on a regular basis to help the supported spouse maintain a reasonable standard of living compared to what they had while married.

Essentially, you and your spouse must resolve most, if not all, of the same issues that you would need to address in marriage dissolution. However, legal separation grants you and your spouse the ability to rescind your separation order at any time if you decide to reconcile. You would both need to sign a petition to terminate your separation order and submit it to the family court. Once this motion is approved, your legal separation order would be void, and you could essentially resume your marriage. You may need to plan for some adjustments if you and your spouse have established separate living arrangements, but this is relatively easy for most couples.

There is no option to overturn or rescind a divorce order once approved. While you and your ex-spouse can legally remarry, going through with divorce will pose significant issues to both of you. If you are having marital problems, it’s vital to carefully consider the potential benefits of legal separation before making any hasty decisions.

Do I Need a Lawyer for Legal Separation?

Whether you and your spouse are using legal separation as a trial period before moving to divorce or as a springboard for a future divorce, it’s vital to have legal counsel to guide you through your separation proceedings. Legal separation offers several advantages, but it is ultimately just as complex and time-consuming as divorce. Your separation order could potentially become the legal basis for a future divorce order. It’s essential to ensure everything is in order and legally enforceable with your separation order.

An experienced San Diego family law attorney is a valuable asset in legal separation proceedings. At Bickford, Blado & Botros, we can support you with the comprehensive legal representation you need to navigate your legal separation proceedings effectively. If you have additional questions or want to discuss the potential benefits that legal separation could offer in your situation, contact the team at Bickford, Blado & Botros today to schedule a consultation.

 

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