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Frequently Asked Questions About Legal Separation

We hear a lot of confusion and questions about legal separation, so thought it would be good to talk about what a legal separation is, what it means, and what the benefits may be. The most obvious difference between a legal separation and divorce is that a divorce puts a legal end to the marriage. When a couple gets a legal separation, a couple receives a court order that details the rights and responsibilities of each spouse while they are living apart. So, with a legal separation, you are still legally married while choosing to live separate lives.

A lot of times the same issues that are addressed in a divorce are also addressed with a legal separation, including child custody and child support, child visitation schedules, spousal support, and division of assets and debt. It is critical that you have good, experienced legal representation when crafting the separation agreement, because oftentimes the separation agreement sets precedence if a divorce follows the legal separation. A judge may assume that you came to terms and are happy with the legal separation agreement; therefore it should carry over to the divorce settlement agreement.

Some people assume that since they have been living apart for years, that it constitutes a legal separation. This is not correct. A legal separation only occurs when a court issues a judgment of separation. Similarly, some people assume that since they are going through a divorce, they are legally separated. Again, this is not true.

A legal separation does have some benefits vs. a divorce, including:

  • It gives couples time apart to determine if divorce is really the course of action they would like to take.
  • It allows the continuation of medical benefits and other benefits that may not be available if a couple divorces.
  • If you are married for 10 years or longer, you may be able to take advantage of certain social security benefits for a spouse.
  • Spousal support can usually be claimed as a tax deduction, as long as it is included in the legal separation agreement.
  • Both spouses are typically protected from a financial standpoint, since a legal separation will normally address joint checking, savings, and credit cards, and outline issues regarding how money is spent and who is responsible for what.
  • If you are legally separated and decide to reconcile, you can dismiss the legal separation and restore the marriage, instead of having to get remarried.

Lastly, one important point to note is that not all states recognize legal separation. California does recognize legal separation, and if you have questions, please feel free to contact us. We are here to help!

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