Law Office of Stephen W. Penn and Associates

What legal separation can and cannot do for you

We at the Law Office of Stephen W. Penn and Associates have found that couples in California have a lot of questions about legal separation. One of the most important things you need to know is that merely living at different residences is not sufficient to separate legally. According to FindLaw, either you or your spouse must file paperwork to obtain a legal separation. On the basis of that application, the court will then issue an order delineating your rights and your duties to your spouse and vice versa. 

In a legal separation, the court will still make decisions regarding property division, child custody and child visitation, just as it would in a divorce. The court also makes decisions in regard to the financial support of one spouse or the other, as well as the children of the relationship. The term for this is "separation maintenance," and it operates according to a different set of rules than child support or alimony awarded in a divorce, but for practical purposes, it is the equivalent of both. 

Although the effects of legal separation are similar to those of a divorce, there is one thing it cannot do that divorce can: end a marriage. Even if you and your spouse legally separate, you still retain your marital status in the eyes of the law. Therefore, unlike a divorce, a legal separation does not change your spouse's right to inherit your property, make financial and medical decisions for you or receive certain benefits. Additionally, you are still liable for your spouse's debts in a legal separation. 

Because a legal separation does not terminate the marriage, you must obtain a divorce if you decide you wish to marry someone else. On the other hand, once a divorce is final, there is no undoing it. If there is a prospect of you and your spouse getting back together, a legal separation makes reconciliation easier than a divorce. More information about divorce and legal separation is available on our website.

 

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  • SCBA | Santa Clara County Bar Association | EST 1917
  • State Bar Of California | California Board Of Legal Specialization | Stephen W. Penn
  • Henry P. Collada Memorial Award 2012