Frequently Asked Questions
Can I get a legal separation? Yes, but you probably don’t want one. There really is no difference between a legal separation and a divorce in California except that the parties cannot remarry; you must remain husband and wife. Under certain circumstances, this makes sense: you may have strong religious prohibitions against a divorce; or alternatively, you may have serious health problems and must remain married in order to keep a health insurance policy in effect. Except for these unusual circumstances, it makes no sense to get a legal separation rather than a divorce. A legal separation is no less harsh that a divorce; except for marital status, everything else is treated exactly as if it were a divorce: support may be ordered; property divided; custody and visitation adjudicated.
What Is the Date of Separation? The real confusion arises between a legal separation and the date of separation. There really isn’t any difference between a legal separation and a divorce except for marital status but the date of separation is very important. The reason that the date of separation is important is that everything you acquire after you separate is separate property and all the bills that you incur is your separate obligation. What attorney’s do during a divorce is reconstruct what was going on financially with you at the date of separation; they create a financial snapshot of what you had in the bank, how much money you owed and to whom, what cars you owned etc. We describe the process to my clients as if the attorney were to draw an invisible line at the date of separation: on one side everything is community; on the other, everything is separate.
How Do I Know When I Have Separated? Since the date of separation is important, how do you know when it occurs? Usually the date of separation occurs when you physically separate, with no intent to reunite, but that is not always the case. Sometimes you must continue to reside in the same residence for financial reasons until the house is sold. If that is the case, then in order to create a date of separation, you must cease having intimate relations and generally make a public statement of the end of their marriage by filing for a divorce. Problems can occur if the you attempt to reconcile after you have separated; those situations can only be resolved on a case by case basis. Likewise, you may physically separate for long periods of time due to changes in jobs but that is not a date of separation.
How Long Does A Divorce Take? It is hard to generalize. A truly uncontested divorce can take a month; a bitterly contested divorce can go on for years.; Most divorces tend to resolve themselves in six months to a year. The six month time frame can be confusing: marital status cannot be terminated in less than six months after your spouse is served. This six month waiting period is anhistorical hangover from the era when divorces were considered to be immoral. The Legislature put in a six month waiting period to force people to think twice about divorcing. It is a silly law; most people do not divorce out of a whim; most divorce because they are compelled to do so to get out of an intolerable relationship. Likewise, most people spend months—-if not years—-before they muster up the courage to file and the six month waiting period is useless. In any event, you can get a divorce now with the marital status to terminate six months after the date of service on your spouse.