There are many reasons why couples pursue legal separation; most often couples are unsure about wanting to continue in the marriage but aren’t quite ready to divorce.
Although legal separation is similar to divorce, there are some crucial distinctions.
The more you know about legal separation before you pursue it, the fewer mistakes you will make that might hurt you in the future if you decide to divorce.
This guide will answer the following questions:
- What does it mean to be legally separated in California?
- How much does legal separation cost?
- How do you file for a legal separation in California?
- Can my spouse and I live in the same house if we are legally separated in California?
- Why is the legal date of separation important?
- Can I date while I am legally separated?
- What are grounds for divorce in California?
What does it mean to be legally separated in California and how much does it cost?
Legal separation allows you and your spouse to divide your assets and debts without ending your marriage.
A legal separation is often pursued when a couple is not sure whether they want to pursue the finality of a divorce; high-net-worth divorces can be lengthy and complicated, and quite frankly costly.
So, if they are not sure, some couples decide to legally separate first. The filing cost for a legal separation in California is currently $435, but that cost may vary in Riverside, San Bernardino, and San Francisco counties.
Many issues are treated similarly to divorce during the legal separation process, such as property, assets, debt, and child custody. Legal separation agreements often serve as the foundation of the divorce agreement, if divorce is later pursued.
How to file for a legal separation in California?
The process for filing for a legal separation in California is similar to the divorce process; you have to fill out the same forms. For an overview of the process and forms that you will need to fill out, click here.
How you fill out your forms and what you write on your court papers is very important and can affect the outcome of your case if you later divorce.
The legal separation court process can get very complicated, especially if you want to include spousal support orders, child custody orders, and orders dividing your property.
The forms must be accurate and complete; I highly recommend you hire a lawyer so that the forms accurately reflect your position.
Hiring a lawyer is especially crucial if you think you and your spouse are likely to disagree about issues like spousal support, child custody, or division of property.
Can my spouse and I live in the same house if we are legally separated?
In January of 2017, a California law went into effect that amended the Family Code to allow for a couple to be considered “living separate and apart” while still living under the same roof for purposes of establishing a date of separation as a precursor of divorce.
Specifically, Senate Bill 1255 added new California Family Code Section 70. Section 70(a) which maintains that date of separation means the date that a complete and final break in the marital relationship has occurred, as evidenced by the two following facts:
(1) the spouse has expressed his or her intent to end the marriage to the other spouse; and
(2) the conduct of the spouse is consistent with his or her intent to end the marriage.
The amended code also contains the wording of SB 1255’s intent to revoke the decisions In re Marriage of Davis (2015) 61 Cal.4th 846 [which held that there is no date of separation where parties still live together] and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152 [which held that date of separation requires an intent to terminate the marriage and actual physical separation].
If all of that is too wordy for you, you’re not the only one!
Basically, the California Family Code used to say that spouses had to be “living separate and apart” to define a date of separation.
Now, that requirement has been removed, and the defining date of separation does not have to mean that one of the spouses has moved out of the house.
So, now you can be legally separated and still live in the same house.
There are many reasons why couples who have decided to divorce choose to live under the same roof.
Sometimes, they are arguing over who will stay in the home (and making a statement by not moving).
Other times someone (usually the husband) is reluctant to move out before the custody arrangement and financial agreement is drawn up.
The most common reason why couples continue living under the same roof after separating, though, is because it is incredibly expensive to maintain two households – especially in California — and the divorcing couple simply cannot afford to do that.
So, they consider themselves separated (by actions) and continue to live in the same house.
Why the date of separation is important
Back to the date of separation. Here are a few quick thoughts as to why the date of separation is important, especially when you are living under the same roof:
- Your date of separation is used to determine each spouse’s community and separate property interests. Once you are separated, your community property rights stop.
- The date of separation in California divorce is a crucial factor in deciding the award of long-term spousal support, as it determines the length of the marriage.
Can I date while I am legally separated?
A commonly asked question about legal separation that I hear often is “Can I date while I am legally separated?”
Technically the answer is yes because California is a no-fault state.
However, if you have children, be advised that dating while legally separated could influence child custody arrangements.
The court’s job is to award custody based on the best interest of the child, and if your new dating life appears to be interfering with your ability to parent and be involved in your child/children’s lives, the court could consider that in their custody ruling.
So, my advice if you decide to date is to proceed with caution.
If you do not have children, dating someone while legally separated should not affect your divorce case or spousal support if that is in play.
What are the grounds for divorce?
In “fault-based” divorce states, specific grounds must be proven by the party seeking the end of the marriage.
However, California is a “no-fault” state, which means a divorce will be granted if one spouse simply states there are irreconcilable differences justifying the termination of the marriage.
No proof is required, and California courts do not care which spouse is at fault for the differences.
If you and your spouse are considering separating, or are separated and living in your home together, feel free to contact me with any questions you might have.