Why would I separate rather than divorce?
When a marriage deteriorates to the point where one or both parties have decided to end the marriage, it is possible to seek a separation, or a divorce. The two terms refer to different legal statuses of the relationship. If you are contemplating which option is right for you, it might help to compare separations to divorces in order to decide which option better fits with your needs.
Legal Marital Status
If you are separated, then your marriage is not legally dissolved. One consequence of this is that no matter how long you are “separated,” you cannot remarry. In order to enter a new marriage, you will have to actually get a divorce.
For some people, the fact that they remain legally married is what they want. For instance, in cases where immigration factors in, or where one spouse relies on health insurance from the other spouse, legally separating might offer a way to work out some of the issues that are handled in a divorce, without losing out on some of the benefits of marriage that the couple relies on.
Property Distribution
Legal separations and divorces both involve coming to an agreement about property distribution. The court will have the ability either way to enter an order regarding who will be responsible for certain bills and expenses, and can determine how to handle jointly owned assets and accounts.
Custody Issues
Like a divorce, a legal separation or separation agreement can include a custody and visitation arrangement for the children. These agreements can also determine child support.
Separations often become divorces
One reason people consider a separation rather than pursuing a divorce is that they are not ready to make the arrangement final. Perhaps the couple thinks they might have some chance of reconciling in the future and they do not want to go through the process of a divorce and incur all of the related costs just to realize that they could work things out.
However, it is important to take the separation agreement seriously, and not to assume that you can rework the arrangement at a later time if you decide to get a divorce. This is because many of the terms decided in a legal separation will turn into the final terms of the divorce. For instance, a custody arrangement that is agreed upon in the separation proceeding might be preferred by the court deciding the divorce case because the court will wish to provide continuity for the children. If you agreed to certain terms for property distribution in the separation, you might have a more difficult time arguing later against what you previously agreed to. Because of this, it is important to remember that a separation agreement can indeed become a permanent divorce agreement.
You do not have to be separated to get a divorce
Sometimes people think they have to be separated for a time before they can get divorced. This is not the case. Even a couple that has been sharing a bedroom can file for divorce in California. If you are trying to determine whether to separate or divorce, your decision should be made based on which legal status offers you the arrangement that benefits you the most.
If you are in the San Bernardino, Riverside, or Inland Empire area of Southern California and have questions about California divorce law, contact Milligan, Beswick, Levine & Knox LLP for a free consultation.
Stephen Levine, is a Board Certified Specialist in Criminal Defense — an honor achieved by only the top criminal law attorneys in California. Mr. Levine has over 40 years of experience in criminal defense and family law serving Southern California, and is a highly regarded Super Lawyer as well as AV Rated attorney.