Legal Separation and its Evolution in California

In a proceeding for a legal separation, dissolution of marriage (divorce), or nullity of marriage (annulment), the family court has jurisdiction to: (i) make custody and visitation orders for any minor children of the spouses’ relationship; ii) award child support and spousal support (alimony) to either party; (iii) settle the property rights of the parties; and, (iv) award attorney fees and costs. (Family Code section 2010.) Everything determined in a judgment of legal separation is identical to that which would have been determined in a judgment of divorce, except for one thing: unlike a divorce, the judicial officer cannot sever the marital relationship and the parties are still married after obtaining a (judgment of) legal separation.

The primary consideration in deciding whether to petition for a legal separation is whether one’s spouse is willing to agree to it (assuming the other spouse participates in the court proceedings rather than ignoring them). Otherwise, the other spouse may thwart the petition for (judgment of) legal separation by responding to the petition with his or her own request for a divorce. In other words, unless the other spouse is defaulted (meaning he or she fails to timely file a written response, a default is taken, and he or she is then legally barred from responding to the petition) by the petitioning spouse, there must be a mutual agreement between the spouses to obtain a legal separation. Further, after petitioning for a (judgment of) legal separation but prior to judgment, if either spouse has a change of heart and decides to get a divorce instead, that spouse can simply request his or her petition or response to it be amended and, assuming the request is granted, amend his or her pleading to request a divorce.

Similarly, subsequent to a (judgment of) legal separation, either spouse can still obtain a divorce. This typically occurs when a spouse decides to remarry, even if he or she initially committed to the legal separation in good faith and had no intention of ever remarrying. In this event, a new case must be filed with all the attendant emotions, delay (a minimum of six months from the date one’s spouse is legally served with the summons and hugely backlogged family courts) and the emotional and financial expense (including attorney fees and costs), when it might have been better simply to have divorced in the first place.

In sum, before filing a petition for a (judgment of) legal separation, one should be reasonably confident that he or she really wants one and his or her spouse will both agree to it and continue that commitment. The vulnerability of the marital status with a judgment of legal separation when one’s spouse subsequently wants a divorce can make for a drawn-out process in multiple lawsuits. Nonetheless, there may be very good reasons for obtaining a (judgment of) legal separation.

Reasons Spouses Might Agree to Legal Separation Rather Than Divorce

Why would spouses mutually agreed to a (judgment of) legal separation rather than a divorce? While not an exhaustive list, the most common circumstances are:

- Religious vows and/or persecution.
- A beneficial interest in another’s estate planning device such as a trust or last will requires that the spouse be married at the time of the settlor’s or testator’s death.
- Advantages of joint state and federal tax returns.
- Health issues of a spouse have driven up health care costs, health insurance through his or her spouse’s employer-provided policy terminates on dissolution of marriage, and other comparable insurance is not affordable outside the marriage.
- Social Security benefits after ten years of marriage may increase, so the parties may agree to delay the dissolution of marriage until passing the ten-year mark.
- Cohabitation becomes functionally or emotionally inappropriate at some point.

The Date of Legal Separation Is Not The Date of Separation

Confusion exists as to the difference between the date of (judgment of) legal separation and the date of separation. When a client wants a divorce, legal separation, or an annulment, and I am preparing their paperwork with them, I inquire about the date of separation. Typically, the response is, “We’re legally separated now.” My reply is, “Did you obtain a judgment of legal separation?,” and the answer is invariably ‘no.’

The date of separation is the result of a fact-based legal analysis required to prove when the earnings and accumulations of the spouses’ community estate stop and each spouse’s earnings and accumulations of their separate estates begin to accrue again as they did before the marriage. After determining the date of separation, the extent of the community estate (or the quasi-marital estate in the case of an annulment which qualifies as a putative marriage) can be found and then divided between the parties as required in a proceeding for divorce, legal separation, or annulment.

In contrast, the date of (judgment of) legal separation occurs on the date the judgment of legal separation (having been signed by a judicial officer) is entered into the record (a computer database) by the Clerk of Court.

In short, if the date of separation has not been determined, there can be no final property division in a proceeding for legal separation, divorce, or annulment (if it qualifies as a putative marriage) because the extent of the community or quasi-marital estate cannot be ascertained. The only connection between a legal separation and the date of separation is this: to obtain a (judgment of) legal separation dividing the community estate equally between the spouses, one must determine the date of separation to know the extent of the community estate.

Evolution of Legal Separation in California

For those interested, below is a brief, historical statement of the evolution of legal separation in California provided in Irvin v. Contra Costa County Retirement Assn., et al. (2017):

[Legal separation] is descended from an early California Supreme Court decision that allowed a deserted wife to obtain financial support from her husband without suffering the religious or social disapproval attendant upon a divorce. In that ruling, Galland v. Galland (1869) 38 Cal. 265, the court held that a wife, “who, without cause or provocation, is driven from her husband‘s house . . . and is wholly without the means of support,” has a common law right of action against the husband for a “reasonable allowance, for the maintenance of herself and child,” without being required to sue for divorce. (Id. at pp. 266, 271–272.) Nearly 10 years later, the Legislature made the remedy available by statute in former section 137 of the Civil Code (Amends. to Codes 1877–1878, ch. 298, § 1, p. 76), which eventually allowed a wife who had any grounds for divorce to sue for a decree of ―separate maintenance as an alternative to seeking dissolution of the marriage. (Hiner v. Hiner (1908) 153 Cal. 254, 257–258; Sweasey v. Sweasey (1899) 126 Cal. 123, 128–129, disapproved on other grounds in De Burgh v. De Burgh (1952) 39 Cal.2d 858, 871; Stats. 1905, ch. 216, § 1, p. 205.) Not only did this secure support for the wife, it prevented the husband from using the threat of nonsupport as leverage to obtain a divorce from an unwilling wife. As noted in Sweasey, “the wife, having a good cause for a divorce, may, if her circumstances require it, . . . apply for a separate maintenance without seeking for a divorce. A husband who wishes to be freed from a deserted wife cannot starve her into the necessity of suing for a divorce, which his guilt and her innocence would alike prevent him from obtaining.” (Id. at p. 129.) In 1917, former section 137 of the Civil Code was amended to require the court to divide the “community property” and “the homestead, if any,” in the same manner as it would in the event of a divorce, as well as to determine maintenance. (Stats. 1917, ch. 36, § 1, p. 35; see Krier v. Krier (1946) 28 Cal.2d 841, 843.)

The remedy of separate maintenance was retained as California‘s public attitudes toward marital relations evolved. As early as 1927, Civil Code section 137 was amended to make the remedy of separate maintenance available to both spouses. (Stats. 1927, ch. 249, § 1, p. 441.) [Fn. 4 adds: “The exception was an action for separate maintenance based on a failure to provide, which continued to be available only to a wife. (Stats. 1927, ch. 249, § 1, p. 441.) That provision was not made gender neutral until 1951. (Stats. 1951, ch. 1700, § 1, p. 3910.).”] When the Legislature passed the Family Law Act in 1969, making California the first state in the nation to enact no-fault divorce (In re Marriage of Davis (2015) 61 Cal.4th 846, 868 (conc. opn. of Liu, J.); In re Marriage of McKim (1972) 6 Cal.3d 673, 678), the legislation retained the substance of a decree of separate maintenance, although it changed the name to “legal separation” and enacted substantive modifications. (Faught v. Faught (1973) 30 Cal.App.3d 875, 878 (Faught); Stats. 1969, ch. 1608, § 8, pp. 3328, 3333, 3335.) Following adoption of the Family Law Act, the entry of a judgment of legal separation required the consent of both parties, and either spouse could convert the legal separation into a marital dissolution at any time by filing a petition for divorce. (Stats. 1969, ch. 1608, § 8, pp. 3324–3325; Civ. Code, former § 4508, subd. (b).)

By the 1970‘s, an action for legal separation was regarded as implementing the judicial concept of “divisible divorce,” which recognizes that the economic aspects of a marital separation can be judicially resolved separately, in time and place, from the issue of marital status. (See generally Hull v. Superior Court (1960) 54 Cal.2d 139, 147–148; In re Marriage of Gray (1988) 204 Cal.App.3d 1239, 1248.) As the remedy was characterized in Faught, “Separate maintenance (now legal separation) is essentially a device to determine and settle the spouses‘ financial responsibilities to one another and to their minor children. While the law may once have been to the contrary [citation], a decree of separate maintenance now operates as a final adjudication of such financial aspects of the matrimonial relationship as spousal support, division of community property, and settlement of property rights, and to the extent the decree deals with such matters it is conclusive.” (Faught, supra, 30 Cal.App.3d at p. 878.)

Under current law, a judgment of legal separation continues to permit the parties to a marriage to separate their financial affairs without severing their marital bonds. Unlike divorce, it is a wholly voluntary remedy. The family court can render a judgment of legal separation only with the consent of both parties, unless the judgment is taken by default (Fam. Code, § 2345), and either party is free, at any time, to convert the legal separation into a dissolution of the marriage by filing an appropriate petition (id., § 2347). As in an order settling property rights upon dissolution, the court is instructed to split the couple‘s community property equally. (Fam. Code, § 2550.) Once the judgment is entered, the earnings of each party are deemed separate property (Fam. Code, § 772), and the parties‘ assets cannot be used to satisfy each other‘s debts (id., § 910, subd. (b)). Because a judgment of legal separation deals only with the couple‘s financial affairs, it is regarded as “leav[ing] the marriage bonds intact.” (Estate of Lahey (1999) 76 Cal.App.4th 1056, 1058 (Lahey).) Only a subsequent divorce can “terminate the marital status of the parties.” (Elam v. Elam (1969) 2 Cal.App.3d 1013, 1020.) . . . [Emphasis added.]