Legal separations and divorce

Legal separations and divorce You and your spouse are having problems, but you aren’t ready to call it quits yet. Maybe you’re thinking of doing a trial separation first, but you’re wondering if there is a difference between a “legal” separation and simply not living together. You might also have questions about how a legal separation would affect a later divorce.

One point of confusion is that a legal separation is not the same thing as a separation agreement. And you don’t have to have any kind of separation agreement if you do a trial separation—but you also don’t have any legal remedies if your spouse doesn’t keep his or her end of the deal. Let’s take a look at the differences:

Legal separation

A legal separation is a legally-binding alternative to divorce that essentially ends a marriage. It must be finalized in court to be valid. Not all states recognize legal separations, but California does.

There may be any of a number of reasons why you don’t want to live like a married couple, but still want to stay married. From religious beliefs, to health care benefits, to immigration status, couples decide to stay married for many reasons. In those cases, a legal separation might be the solution.

Separation agreement

In contrast, a separation agreement is a legal contract, but it does not terminate the marriage, and it does not need to be finalized in court. You can use the agreement to address specific issues while a divorce is pending, such as visitation rights, or who pays the bills. If one partner doesn’t follow the agreement, you can have it enforced in court.

Trial separation

A trial separation can basically be any arrangement you and your spouse have when you decide to try living separate lives. You don’t have to go to court or agree to a separation agreement first, but you only have your spouse’s word that they’ll keep their end of the bargain. You both still legally own any community property together—and you share responsibility for any debt the other spouse has.

When should I consider a separation agreement?

If you anticipate a long trial separation, or if you’ve already been separated for a long time but still aren’t ready to formally divorce, a separation agreement might be right for you. For financial reasons, it often makes sense to formalize an agreement to set down the rights and financial obligations of each spouse. One important effect of a legal separation is that each spouse will individually own their own earnings—and debt—that they acquire after the separation, instead of having to share with the other spouse as community property.

STOP! Don’t sign until you talk to an attorney!

Before you sign any agreement, speak to a qualified divorce attorney. A legal separation agreement is a serious, binding legal document—and it can set a precedent for when you do decide to get divorced. Consequently, you should treat the agreement as seriously as if it were a divorce decree. You should have your own attorney review any agreement before signing it.

Lawyers aren’t simply trying to get more business when recommend that you retain your own attorney to represent you in divorce and separation matters—the sad truth is that we’ve seen too many situations go wrong when a spouse relies on their ex’s attorney, or when neither party has an attorney.

If you have questions about how to proceed with your separation or divorce, make an appointment today to speak with an experienced Southern California separation and divorce attorney. At Kendall Gkikas & Mitchell, LLP, we have over 20 years of experience handling Southern California divorces. Call 909-482-1422 or email info@parents4children.com to set up your initial consultation today!