By their very nature, family law proceedings cause a great deal of emotional pain and confusion in a person's life. One's focus is, understandably, on how the process is going to impact his or her children, retirement plans, real and personal property and overall financial health. In the midst of the storm, parties in a family law action must continue to perform at work, provide emotional support for their children and determine how they are going to maintain two households on the same income that, only a few weeks prior, seemed barely sufficient to keep one household afloat. It is not surprising that many people enter into these matters with only a cursory understanding of the differences between the date of their separation, legal separation and dissolution of marriage.

Date of Separation

The economic consequences relating to the determination of the date of separation can be significant. It is on this date that the entity known as the "community estate" is terminated and the spouses stop acquiring community property. The date of separation, however, has no impact on the parties' respective interest in previously acquired community property. All income earned after the date of separation is the separate property of the spouse who earned the income. Similarly, all debts and obligations accumulated following the date of separation are the separate obligations of the spouse who incurred the debts. All property rights, including those related to retirement benefits accruing after separation, are the separate property of the spouse acquiring the property. So, given its importance, just what is the "date of separation?"

The date of separation is established based on the relationship of the spouses. It occurs when the marriage is at the point where the parties have come to a parting of the ways and have no present intent of resuming their relationship as husband and wife. The court will consider conduct that evidences a complete and final break in the marital relationship. This, obviously, is more than a simple disagreement between spouses. The analysis requires that at least one spouse have the subjective intent to end the marriage and take some step which indicates a final break in the marital relationship. The date of separation is established without a court order and usually occurs before an action to terminate the marriage has been filed.

Legal Separation

Unlike the initial separation of the parties, a legal separation requires a court judgment. A judgment of legal separation has essentially the same effect as a judgment dissolving a marriage with one important difference. The spouses are still married. As such, the parties are not free to remarry until a judgment dissolving their marriage is entered. As part of a judgment of legal separation issues related to child custody and visitation rights, the amount of child support and spousal support, if any, is to be paid by one spouse to the other and division of community property is decided

Legal separation is available for persons whose religious, moral or personal beliefs prevent them from terminating their marriage. It is also used tactically when neither spouse has met the residency requirements necessary to request that the marriage be dissolved.[1] Spouses will also agree to file for legal separation, rather than dissolution of marriage, to protect health insurance benefits for a spouse who cannot obtain such coverage at a reasonable cost. Care should be taken, however, as many health insurance providers do not differentiate between legal separation and dissolution of marriage and deny benefits beyond the date judgment of legal separation is entered.

Both parties must agree for a judgment of legal separation to be entered rather than a judgment for dissolution of marriage. At anytime prior to the entry of judgment, either party may amend the petition or response to request the dissolution of the marriage. The court will grant the dissolution of marriage at the request of one of the spouses even over the objection of the other.

Dissolution of Marriage

For a court in California to have jurisdiction to issue a judgment of dissolution of marriage, at least one of the spouses must have resided in this state for the six months, and in the county in which the action is filed for three months, immediately before the petition for dissolution of marriage is filed. The judgment dissolving the marriage may not be entered sooner than six months after the respondent spouse has been served with a copy of the summons and petition or otherwise appeared in the action.

Upon the entry of a judgment dissolving their marriage, spouses are returned to the status of single persons. At that time, they are free to marry again if they so choose.

This article is intended to help persons to understand the basic differences between separation, legal separation and dissolution of marriage in California. Because each person's individual facts and circumstances are different, it is critical that one seeks the advice of a competent attorney before selecting the marital status remedy that will effectively addresses his or her situation and the issues he or she faces.
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[1] California requires that a person reside in this State for six months, and in the county in which the dissolution action is filed for three months, immediately prior to the filing of a petition for dissolution of marriage. (Family Code section 2320.)

Dale J. Blea has been a practicing attorney in California since 1993. Mr. Blea's primary areas of practice include business litigation and family law. He is a partner with Joseph M. Arnold in the firm of Arnold & Blea, LLP, which also serves clients in employment, personal injury, estate planning and criminal matters. The URL for Arnold & Blea, LLP, is http://www.arnold-blea.com. The author may be contacted at dblea@arnold-blea.com.

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