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How a legal separation differs from divorce

Some couples in California may decide to have a legal separation before getting a divorce or in lieu of divorce. While it does not technically end a marriage, a legal separation addresses many of the same issues as a divorce.

For example, support payments and custody agreements would be elements of a legal separation the same as they would be in a divorce. In a separation, however, the latter two are referred to as maintenance to distinguish them from the orders that accompany a divorce. If the separation precedes the divorce, the final decision regarding support may take the maintenance arrangement into account.

Property division is somewhat different. During a temporary separation, there might not be a formal agreement regarding property division. Furthermore, assets and debts acquired during this time might still be considered joint marital property. However, if the separation becomes permanent, this may not be the case. How property is handled may differ depending on individual circumstances and agreements.

An attorney may be able to talk a client through the process of a legal separation and its advantages and disadvantages. Since California is a community property state, if the couple then decides to divorce, most property acquired after the marriage will probably be considered shared property. Therefore, if only one person has worked outside the home and earned income, all assets, including income and a retirement account, may still be considered the property of both people. A couple might reach an agreement on support or maintenance through negotiation instead of litigation.