Legal separation is available to a married couple who is no longer able to cohabitate due to a breakdown in the marital relationship or when one spouse is suffering from incurable insanity. Under these circumstances, the couple will choose to live separately under formal terms either agreed to between the parties or ordered by the court.
Legal separation represents an in-between area in the law in which a married couple or couple in a domestic partnership is not living together as a married couple or domestic partners, however, they are not divorced or have not dissolved their domestic partnership yet.
Since a legal separation does not end a marriage or domestic partnership, a legally separated couple cannot remarry or enter into a partnership with someone else. Rather, a legal separation acts as a middle ground between marriage or a domestic partnership and divorce of dissolution of a domestic partnership.
The process of legal separation
The process of legally separating is somewhat like that of the divorce process in that the couple either requests that the court decide the terms of separation or a legal separation agreement is presented to the court for approval. Under either case, the terms of the separation will control how assets will be divided or how child rearing and support responsibilities will be carried out.
Regardless, if either the terms of separation are contested or uncontested, any issues decided or approved by the court will remain in effect until either the court accepts a modification of terms or the couple finalizes their divorce. At which time the final judgment of divorce would take precedence over the conditions of the separation.
Also Read: How to File for Legal Separation
Grounds for a legal separation
In California, much like other states, a party or parties seeking legal separation must provide a legally recognized reason for the separation, also known as grounds for separation. Legal separation may be requested based on irreconcilable differences, which have caused the irremediable breakdown of the marriage or an incurable insanity of one spouse. Just as in the case of a divorce, California is a “no-fault” state, in that the court need not find that one of the parties was at fault for the breakdown of the marriage leading to the separation, rather the court will only look into the question of whether the marriage is past the point of being saved rather than who caused the underlying problems that harmed the marital relationship.
An experienced divorce attorney can assist you when contemplating a legal separation. Further, an experienced legal separation attorney can explain the consequences of legal separation and what rights and obligations separating spouses possess.