Sometimes it’s best to end things when it just doesn’t work out anymore. The first thing that often comes to mind when a marriage doesn’t work out is getting a divorce. However, there are other ways to deal with legal break-ups such as legal separation and separation agreements. In this article, we will discuss the similarities and differences between a divorce, legal separation, and separation agreements, and why some individuals might seek these alternatives.
What is Legal Separation?
Legal separation is an alternative to a divorce. Although they share similarities, they are not quite the same. Legal separation is a court-ordered arrangement that allows married couples to be apart, living separate lives. Oftentimes, this alternative is common in circumstances where married couples are uncertain of their marital status but wishes to create boundaries in marital matters such as financial obligations, responsibilities, ownership of assets, custody, and child support.
How Is Legal Separation Different From A Divorce?
Unlike a divorce, a legal separation does not legally end the marriage completely. This means that married couples will live separately with conditions to the separation while their status still remains as “legally married”. On the other hand, once a divorce has been finalized, the parties will resume the status of a single individual and will be able to marry other people.
Legal separation is similar to a divorce in a way that it still requires couples to go through some of the same processes such as;
- Legal paperwork (filing a petition)
- Settlement on marital matters (alimony, property division, child support, custody)
- The court must grant a final judgment of legal separation (Cal. Fam. Code § 2010.)
California is a “no-fault” state, which means that spouses do not need a reason for a divorce. In the same way, couples that are filing for a legal separation can either assert that they have irreconcilable differences or that their spouse is permanently incapacitated.
Related: Divorce, Dissolution, and Legal Separation – The Differences
What Are The Benefits of Choosing Legal Separation?
Many married couples that want to end a marriage may not want to divorce for various reasons. For instance, some individuals might not be able to divorce due to religious reasons, or in other cases, married couples choose to keep their marriage because they have children. Some couples might value how a divorce is viewed in social regard. Whatever the reason may be, legal separation is an alternative that can provide a solution to these social dilemmas.
Additionally, other benefits of a legal separation may also include;
- Legally separated couples may still enjoy tax benefits for married couples,
- Continue to receive the same health insurance benefits
- Legal separation is not set in stone! – couples have chances of reconciliation after the separation
- Stability in financial costs
- More time in negotiating a settlement while still setting marital boundaries
- Doesn’t require divorce residency requirements (California law requires court orders on several divorce-related issues such as child custody and property division)
All the benefits aside, it is important to note that there are downsides to legal separation as well. Legal separation may not be the best option for individuals who…
- Expect to remarry in the future
- Wishes to cut all financial ties with their spouse
- Is certain about dissolving their marriage – in this case, a legal separation will just draw out the stress in an unhappy marriage
At the end of the day, couples should base their decision not only on the benefits but what is more suitable under their circumstances.
What is a Separation Agreement In California?
In California, a separation agreement is a contract that legally binds the spouses to the agreements made on all marital issues like child support, custody, property division, and alimony. However, this is not to be confused with a legal separation. The biggest difference between a separation agreement and a legal separation is the formality in their process. Unlike official legal separations, couples are not required to go to court to enter into an agreement with their spouse.
Common terms that are covered in California separation agreements include;
- Child support, custody, visitation
- Alimony
- Property division
- Pensions
- Life insurance, and
- Debts
What Are The Benefits of A Separation Agreement?
The process of both legal separation and divorce requires two things, the party’s agreement on marital issues and the court’s ruling. Separation agreements can help ensure individuals that the process of finalizing a legal separation or a divorce will go as smoothly as possible. The biggest benefit of separation agreements allows couples to create their own terms for the separation such as;
- How marital property is divided
- Who or how much will each parent pay for child and spousal support
- Establish a schedule for child visitation
WIthout separation agreements, these terms will generally be decided by the court. A downside to this is that a lot of times, parties are left feeling dissatisfied with the outcome of the determination. The court aims to best establish what is fair for both parties, however, the decision of the terms does not always accurately reflect the desire of the parties.
Do I Need To Hire an Attorney If I Want to Get a Separation Agreement?
The law does not require that an individual have an attorney to create a separation agreement. Some spouses may prefer to create a separation agreement by themselves. A common misconception is people tend to believe that having a lawyer handle emotional decisions in a divorce will only escalate ongoing hostilities that are already present.
However, having a lawyer can actually help do more help than harm. It can almost always be expected that the parties will stumble on some disagreements. A lawyer generally has more knowledge of the law and rules of the separation and divorce procedures fitted for handling these matters. They can help individuals make informed decisions by ensuring that agreements are not based entirely on their emotions or personal concerns. Keeping anger out of disagreements is a crucial way for individuals to best represent themselves in court.
How Can An Attorney Help Me With a Separation Agreement?
Although it is not required, hiring an attorney to help you prepare your separation agreement can benefit you in several ways:
- Ensuring that an agreement is fair and reasonable
- Protect your rights and interests
- Accurately reflect your intentions
- Advise you on any implications of the agreement
- Meet with requirements of the applicable laws
- Are separation agreements legally binding?
A separation agreement is essentially a contract between the spouses. Therefore, the agreement will serve as a legally binding contract for both parties. In the event that a dispute arises, or if a spouse fails to perform according to the terms, either party can ask the court to enforce the breached terms. It is important to note that while a separation agreement is binding on both spouses, it does not have the same effect as a legal separation or a divorce.
Are Separation Agreements Legally Binding?
A separation agreement is essentially a contract between the spouses. Therefore, the agreement will serve as a legally binding contract for both parties. In the event that a dispute arises, or if a spouse fails to perform according to the terms, either party can ask the court to enforce the breached terms. It is important to note that while a separation agreement is binding on both spouses, it does not have the same effect as a legal separation or a divorce.
Contact Pride Legal
If you or a loved one has been looking to get a legal separation or separation agreement, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.