Why Should A Couple File for Legal Separation?

Filing for legal separation has some similarities to filing for divorce. In a legal separation case, a judge can establish spousal and child support, custody and visitation, domestic violence restraining orders, and any other orders a person can get with a divorce case, according to the Superior Court of California’s website.

However, filing for legal separation is different from divorce because it doesn’t bring a domestic partnership or marriage to an end. Legal separation is designed for couples that don’t want to divorce, but do want to live apart and decide on money, property and parenting issues, the website states.

“Couples may opt for legal separation because they want some time apart to determine if their marriage can be salvaged,” says Griffith, a California divorce law expert.

There are circumstances where one spouse is battling an addiction and the other spouse wants to give their partner an opportunity to restore their health, but knows remaining in the same house would be unsafe for their children. Some couples separate instead of divorce due to their religious beliefs.

Couples who legally separate can reconcile later, or decide to divorce. A legal separation can be undone; a divorce, once finalized, cannot.

The purpose of filing for legal separation is to protect yourself in the event your spouse reneges on the agreement you both signed.

Advantages of Legal Separation

  • If you are legally separated and you’ve been ordered to pay spousal support, you can claim those payments as a deduction on your taxes.
  • You can remain on your spouse’s health insurance while you’re legally separated.
  • Your agreement can clearly define who is responsible for which bills while you are legally separated, such as car payments, mortgages and credit card debt.
  • You can continue filing taxes jointly, which could present some tax benefits.

There are some advantages to remaining married for at least 10 years. Some divorced spouses who don’t remarry would become eligible for social security benefits, provided certain criteria are met. In California, a marriage of at least 10 years means the court has the right to order that alimony be paid to the spouse who earns less money for as long as necessary, provided it is determined the other spouse has the ability to pay. If you know you want a divorce and you have been married nearly 10 years, you could file for legal separation until you reach the 10-year mark.

We represent a lot of clients who are in the military, or their spouses are in the military, and there are some benefits of legal separation that are specific to these couples. Generally speaking, couples must be married for 10 years for military pension enforcement, and 20 years for PX, commissary and health care benefits. There are other criteria that must be met, which are detailed in The Uniformed Services Former Spouse Protection Act. Military spouses who know they’re headed for divorce may file for legal separation until they meet these thresholds.

The key to separation is protecting yourself.

“There’s certainly no requirement to file for legal separation if you no longer want to live under the same roof as your husband or wife,” Griffith says. “But in states where legal separation is recognized, it is recommended that you meet with an attorney and file with the court to ensure the conditions you agreed to can be enforced by the court if necessary.”

If you’re considering separation from your spouse, contact our office to schedule a free consultation. We will walk you through your options.