Three legal terms are often misinterpreted in a divorce setting: separate, separated, and separation. Below are brief definitions and summaries of these three legal terms you should know if you are thinking about filing for divorce.
Separate – Separate Property
Division of property is a big part of the divorce process. California is considered a community property state. This means all property acquired during a marriage is presumed to be community property and subject to a 50-50 division at the time of the divorce. One exception to this rule is community property received as a result of a gift or inheritance.
This also means that any property that is deemed separate, is considered separate property and not subject to the 50-50 division upon divorce. It is important to note that certain actions or agreements between you and your spouse can change the character of your property community property to separate property or vice-versa.
Separated – Date You Are Separated From Your Spouse
Generally, couples consider themselves separated if they have left or been left by their spouse. However, the legal definition for purposes of a California divorce proceeding is the date when either spouse no longer intends to resume the marriage. The date you legally separate from your spouse is a precise date with important legal consequences. Date of separation is also the date used to calculate the length of your marriage.
Separation – Legal Separation
Legal separation is an alternative to divorce. Similar to a divorce proceeding, a court of law will have to resolve important issues such as child custody, visitation rights, division of property and spousal support issues. The main difference between legal separation and divorce is that after a legal separation, you are still married to your spouse. Legal separation is generally preferred in two types of cases:
- The parties do not want to be divorces for different reasons, such as religious beliefs and maintaining health insurance coverage.
- The parties cannot file for divorce because they do not meet the residency requirements for a divorce in California. In such a case, you can file for legal separation and then file for a divorce when you meet the six-month state or three-month county residency requirements.
Call an Experienced Central Valley Divorce Attorney
If you are going through a divorce or planning to file for divorce, it is important that you have a knowledgeable attorney fighting for your rights. For more information or to schedule a complimentary consultation with a Central Valley divorce attorney, please call Gurjit Srai (209) 323-5558 or (559) 449-1447, or complete our online form.