What Does it Mean to be Legally Separated in California?

What does it mean to be legally separated in California?

The conversation usually goes something like this. Assume the husband called our family law firm.

Me: "How long have you and your wife been married?"

Caller: "We have been married for nine years but legally separated for two of those."

After that answer, I ask follow-up questions. I quickly realize the person on the other line who just told me he and his wife have been "legally' separated for two years means "physically" separated. But, the caller does not practice family law daily. He does not understand there is a significant difference between the two concepts. I then explain it to him.

On this page, we explain what being legally separated actually means and how it is different from physical separation or the "date of separation."

Legal Separation: What You Need to Know

Legally separated means the husband and wife have a legal separation judgment. That judgment of legal separation means a court order that, if applicable:

Of course, a legal separation judgment does not have to include everything I stated above. Some couples do not have children. A husband and wife may not need support orders for various reasons. They may have little to no assets. But regardless of what it states, a true legal separation means a legal separation judgment and a judgment means a court order.

What does it mean to be legally separated versus physically separated?

A physical separation simply means the husband and wife no longer reside together. Spouses may physically separate for various reasons. They may live separate and apart for months, years or decades without ever filing anything with the court. That does not mean they ever became "legally" separated. Physical separation, no matter how long it goes, does not one day suddenly become a legal separation judgment.

What does it mean to be legally separated versus "date of separation"?

Every divorce has a date of separation. That date of separation means "the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

(1) The spouse has expressed to the other spouse his or her intent to end the marriage.

(2) The conduct of the spouse is consistent with his or her intent to end the marriage."

That is how part of California Family Code 70 defines date of separation. The date of separation is important because it can impact issues such as:

  • division of assets and debts,
  • spousal support,
  • valuation of assets, and other issues.

Spouses can agree on the date of separation or the date of separation can be a disputed issue in a contested divorce. Regardless, a date of separation is very different than a judgment for legal separation.

Why would anyone want to be legally separated and still remain married?

Two people may agree to a legal separation judgment instead of dissolving their marriage for a variety of reasons. Sometimes, a man and woman for religious reasons do not want a divorce judgment. Other times, they may want a judgment of legal separation versus a divorce because they think it could benefit one or both of them on issues such as insurance. Whether it actually does help or not is beyond this article's scope. What matters is husbands and wives usually have their own reason why they want a legal separation instead of a divorce.

What if one spouse wants a legal separation and the other does not?

Family Code section 2345 states, "The court may not render a judgment of the legal separation of the parties without the consent of both parties unless one party has not made a general appearance and the petition is one for legal separation."

That means both spouses must consent to a legal separation judgment. If the petition asked for a legal separation, the other spouse never responded and the petitioner filed a default, the judge may grant a legal separation judgment.

Does having a judgment of legal separation mean the husband and wife must remain married forever?

It does not. At any time before or after the legal separation judgment, either spouse can ask the court to end the marriage's status and therefore receive a divorce. A divorce does not require consent. It does not matter if one spouse does not want a divorce.

Contact us for your divorce or legal separation case

Please contact us for an affordable strategy session to discuss your specific situation. Our family law firm is highly experienced in handling pending and post-judgment divorce and parentage matters.

Nothing contained on this page or on our website is legal advice nor should it be construed as such. It is not intended to apply to your specific situation or answer your specific questions.