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But I'm Already Legally Separated!

This is something I hear often and but what does "separation" mean in the family law arena? The terms "date of separation" and legal separation are very different things and somewhat confusing. We talk about "date of separation" to determine when one person decided the marriage was over. This doesn't mean you must live in a separate home from your spouse. You can live together but still be "separated". Sometimes this date is contested (argued about) in court. Why is this date important? California is a "Community Property" state. Which means that everything acquired during the marriage - both assets and debts, are equally shared by the "community". The "community" is you and your spouse. The "date of separation" ends the "community" status.

In some situations it's not important; in other cases it's very important. Think of it this way: before you got married everything you had was your "separate property". Your paycheck was all yours, anything you purchased was all yours. Once you got married, you became part of the "community", your paycheck was community property, if you purchased a car, it is community property, and household items bought during marriage are community property. Even though you may be the only person working, or you bought the new refrigerator on a credit card with only your name on it, or the car is registered only to you - it's all community property. The date of separation ends the "community" for purposes of acquiring assets and debts.

A "legal separation" requires filing of legal paperwork and the Court signing a Judgment for Legal Separation – it's a dissolution without the divorce. It legally ends the community status without ending the "marriage".

I know what you are thinking; I said previously that the date of separation ends the community status. Yes, that's true. However, it's not that easy. Legally speaking a marriage is several things. It is a financial contract between two people. In legalese we say that spouses have a "fiduciary duty" to the other. It is also your status as a "married" person as opposed to being a single person. A "legal separation" can end the "fiduciary duty" to each other, without ending your "marital status". The same issues that are present in a dissolution of marriage are present in a "legal separation". The parties must divide property, determine spousal support, child custody and support issues and any other legal issues, but the parties remain "married". Think of it as being financially single but legally married. "Legal separation" is usually desired for religious purposes, or to protect one spouse from financial hardship.

So, dissolution of marriage dissolves the financial duties to each other and returns each person to being "single". A legal separation dissolves financial duties but each party remains married.

Categories: Legal Separation
The Law Office of Stephanie J. Squires & Associates, APLC 909-907-8783

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