Legal Separation

Some clients request a legal separation. A legal separation consists of dividing property, ordering child custody, child support, spousal support, and all other orders that may be obtained through a divorce. But the marriage is not terminated. Some clients, for religious reasons or due to the need of keeping health insurance, will request a legal separation rather than a divorce.

Spouses who have come to a parting of the ways often seek a legal separation instead of a dissolution in order to retain eligibility for medical insurance that would otherwise be lost by a termination of the marriage. This can be a very important consideration where a party has a preexisting medical condition (for which new coverage would not be obtainable) or insufficient financial resources to defray the cost of conversion or replacement coverage.

A judgment of legal separation leaves the marriage bonds intact. In effect, however, the parties remain “married” in name only, without the concomitant rights and responsibilities that attach to marital status. They cannot enter into a new marriage unless and until the existing marriage is dissolved by death or judgment of dissolution; but the judgment finally adjudicates the financial issues between the parties, including determination of their support obligations and a division of their community estate (except that, pursuant to Famly Code §2556, unadjudicated CP assets and debts remain subject to the family court’s continuing jurisdiction to divide.

There is one potential stumbling block to a judgment of legal separation that is not encountered on the road to a judgment of marriage dissolution: The court may not enter a judgment of legal separation on a petition requesting same unless both parties consent thereto … except where the respondent has not made a general appearance (i.e., default cases).