What is a legal separation?

By: Attorney Jeffrey R. Sissung

I sometimes hear a potential client say, "I don’t really want a divorce. Maybe just a legal separation." The potential client’s understanding seems to be that a legal separation creates only a temporary condition pending a potential reconciliation; that a legal separation is somehow a "divorce lite." That understanding is not accurate.

A legal separation and a marital dissolution are similar in that both proceedings are actions to conclusively determine and settle the spouses’ property rights and financial responsibilities to one another and to their minor children. Both proceedings result in a final judgment on the issues of child and spousal support; child custody and visitation; and community property rights and obligations. In that sense they mirror each other. The critical difference between a marital dissolution and a legal separation, however, is that a judgment of legal separation does not terminate marital status. That is, in a legal separation, the parties remain married at the conclusion of the proceeding and are not free to marry another person. Each party remains free to obtain a subsequent "status" judgment to dissolve the marriage should either choose to do so, however, the issues decided during the legal separation process cannot be re-litigated.

Why choose a legal separation? People generally choose a legal separation over a marital dissolution for religious beliefs, tax purposes, or other personal reasons. In today’s difficult economy, spouses might seek a legal separation instead of a dissolution in order to retain eligibility for medical insurance that would otherwise be lost by termination of the marriage. This is obviously an important consideration where a party has a preexisting medical condition (for which new coverage would not be obtainable) or insufficient resources to procure replacement coverage.

People also frequently confuse the terms "legal separation" and "date of separation." Both have a distinct legal meaning. The date of separation, a critical date in both a legal separation action and a marital dissolution action, is the date on which the community estate is to be divided. A legal separation is a means of adjudicating marital rights and obligations, as set forth above.

Hope that helps clear up some confusion regarding the legal separation!