While most states use the two terms indifferently, legal separation and separation by agreement are different in the state of California. Similar in essence, a couple agrees to separate while staying married, one is an agreement, the other a judgment.

What is legal separation?

A legal separation is a court order that determines the rights and duties of a couple while they are still married but living separately. The judge and the courts define the future finances, child custody, child visitation rights and division of property.
You have to follow the same process as a divorce: file a petition, agree on split of assets, income, property, custody and/or alimony and obtain a final judgment from the court.
If you do not present the Judge with properly drawn up papers, the Court will have to decide on important issues that might have been overlooked.

What is separation by agreement or Marital Separation Agreement?

A separation agreement is different than a legal separation. It is an agreement between the spouses, usually drawn up by an Attorney, but it’s not mandatory.
The document stipulates that the parties agree on the same issues as a legal separation, namely the future finances, child custody, child visitation and division of property. At first you do not have to file the separation by agreement with the Court, because it becomes effective as soon as it is signed and notarized. But later on, if you start the divorce proceedings you will have to attach the separation by agreement to the petition.

Should you choose an attorney or mediator for a legal separation?

For a legal separation, you have to go to Court. You can get advice from an attorney specializing in divorce or family law, but legal representation is not required.

In both legal separation and separation by agreement, you are, in a way, ending the marriage. Even if you and your spouse go about it very amicably, differences of what is right and fair may arise. There is a lot at stakes, whether it is the future residence, health care benefits, division of assets, the well being of all parties involved especially children. Working out the agreement on neutral grounds might be a good idea rather than fight and keep the process going for longer.

A mediator or an attorney can guide you and help you every step of the way for in a legal separation or a separation by agreement (in fact, divorce mediation firm often have divorce lawyers on staff). You always want to have legal documents drawn up by professionals in order to avoid mistakes that you may not be able to fix in the future. If later on you want to proceed with a divorce, a well written separation by agreement will be a plus.


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