Family Code 2300 - Legal Separation and Divorce / by Cassandra Hearn

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Making the decision to separate from your spouse or divorce is never easy.  You have built a life with a person, sharing goals and dreams, but the divorce or separation means you will both go your separate ways and start building a new vision for the future.  You will need to make many decisions during the process, including whether you want to seek a legal separation or a divorce.  California Family Code 2300 provides an important key to whether a legal separation or a divorce is right for your situation. 

Family Code 2300 says simply “The effect of a judgment of dissolution of marriage when it becomes final is to restore the parties to the state of unmarried persons.”  Although this seems straightforward and simple, it has big implications for those considering a legal separation instead of divorce.  This statute makes it plain that until you get a decree of divorce, you are still married.  In other words, a legal separation does not make you a single person again.  Although a legal separation can provide you with an avenue to accomplish many of the same goals as divorce, such as obtaining an order for temporary support, dividing personal property, or entering an order providing for child visitation, it cannot restore you to the status of “single.”  For those considering the option of remarriage, this means that legal separation is probably not the best option.  Moreover, the process to obtain a legal separation is very similar to that of obtaining a divorce.  It can take just as long as the process of divorce, especially where your spouse is resistant to the idea.  That being said, there can be valid reasons to wanting to remain married even if you no longer wish to live with your spouse.  There are many people who feel compelled by religious reasons to remain married.  Legal separation allows those who do not believe in getting a divorce to get assistance from the law in separating their financial affairs, property, and parenting time.  Many others choose to remain married because of health insurance.  It is not possible to keep your former spouse on your health insurance indefinitely.  Obtaining a legal separation can allow you and your spouse to both remain on the same health insurance policy, which can provide a major financial incentive for legal separation instead of divorce.

The decision to seek a legal separation instead of divorce can be complex and you need an experienced attorney to help guide you.  Contact us today to let us help you