Which is preferable, legal separation or divorce?
Q After 12 years, we are going our separate ways. We have a daughter who we both love, we both work, and we have accumulated certain valuable assets. Is legal separation a better idea than divorce?
— P.H., Del Aire
A California allows married couples to legally separate. The objective is an official court order that: (a) confirms you are living apart, leading separate lives, (b) establishes who is responsible for which assets and debts, (c) addresses how child custody will be handled, (d) sets spousal support, if any, but (e) without the permanence of an actual divorce.
Couples may choose legal separation, as opposed to divorce, for a number of reasons. They want to live apart, for example, but not wholly dissolve the marriage; their religion precludes divorce; they are not at a point where they want to permanently end the marriage, but want family matters to be well defined (such as financial, property and co-parenting issues); and/or it is prudent to maintain certain benefits of the marriage (e.g., health insurance or tax related).
Divorce is the formal end/ termination of the marriage. You become legally single and thus can remarry. Legal separation can serve as a kind of “trial” should you be unsure whether you want to completely dissolve the marriage or not.
While I have responded to your inquiry, keep in mind this column is not a substitute for you very carefully going over all of the particulars about divorce or legal separation with a qualified professional.
Q Should we try divorce mediation or just go through with whatever proceedings are needed to get a divorce?
— B.G., Glendale
A It is at least possible to lower the cost and stress of a divorce by using mediation. One form of mediation involves the couple working with a trained, neutral professional to assist them in negotiating the important issues in their divorce. Another option is each side has their own counsel who works with a mediator. Note that you do not have to choose mediation initially, but can later make that decision (so long as it is mutual).
Under California law, a judge is required to order couples to mediate child custody issues, if they have minor children but are unable to agree to a parenting plan by the time they have filed for divorce.
Bottom line, the decision to mediate or not should at least be given consideration. Consulting with a family law attorney is advisable to learn more about the process, costs, pros and cons.
Ron Sokol has been a practicing attorney for over 35 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.