Separate, Separated, Separation

Friday, February 20th, 2009
Categories: Blog, Child Custody, Division and Valuation of Property, Filing for Divorce, Legal Separation, Spousal Support

Here are three legal terms that you should think about if you are thinking about filing for divorce:

Separate – Separate Property

One part of a divorce is the division of property. California is a community property state. All property obtained by either party during a marriage is presumed to be community property and jointly owned 50/50 unless the acquisition of the property was the result of a gift or inheritance. Any property acquired during a marriage that can be traced to separate property is also separate property. All other property, including property that was acquired before marriage or after the date of separation, is separate property. Certain actions and/or agreements between the parties can transmute or change the character or the property from community property to separate property or vice-versa. Classification of marital assets as separate property or community property directly affects who gets what and how much.

Separated – Date of Separation

Normally, people consider themselves separated if they have left or been left by their spouse. This can be when you are considering filing for divorce, waiting to file for divorce, or have already filed for divorce. For California family law purposes, the date of separation is the date when either of the parties does not intend to resume the marriage. The date of separation is a precise date with important legal consequences. First, all property obtained after the date of separation is a separate property instead of community property. Second, The date of separation, not the date of filing or the date of divorce is used to compute the length of the marriage. In some cases, the date of separation is so important that the divorce is bifurcated or divided into two cases, with a separate trial held first to determine the date of separation.

Separation – Legal Separation

Legal separation is an alternative to divorce. In a legal separation, the custody, visitation, property and support issues are all resolved or decided by the court. The main difference between legal separation and divorce is that after a legal separation, the parties are still married. Legal separation is preferred to divorce in two types of cases. First, legal separation is useful for people who want an end to the marital relationship and want the court’s protection over property, support, and/or children but do not want to be divorced for various reasons. Reasons for preferring legal separation include religious beliefs and maintaining health insurance coverage that requires the parties to be married. Second, legal separation is used by people who do not meet the residency requirements for a divorce in California. Filing for a legal separation lets you request support, and property restraining orders before you could if you did not meet the six-month state, or three-month county residency requirements required for a divorce. A person can file for legal separation, and then once the residency requirements for dissolution are satisfied, amend the original petition for legal separation to a new petition for divorce, using the original petition’s filing date.

If you are thinking about filing for a divorce or a legal separation, you can call a Los Angeles family law attorney to schedule a free consultation.