One seemingly simplistic yet complicated issue that many divorcing parties face is determining what the true date of legal separation is. Usually this question doesn’t even come up until the parties begin preparing their Petition or Response. In coming up with an answer, it is important to first determine whether we’re looking for the “date of separation” or a “Legal Separation.”
In family law there are two kinds of legal separation. The first is the date that was used for the purpose of preparing the Petition or Response pursuant to a Dissolution of Marriage. This date of separation that appears on the Petition or Response bears legal ramifications. One of the most significant is the determination of earnings and debts acquired after this date, which become the separate property and responsibility of the spouse earning the income or incurring the debt.
The other type of Legal Separation can result in a Decree of Legal Separation, which is different from a Judgment of Dissolution. In either instance, all legal rights and obligations, such as custody, support, and property division can be dealt with through the court. Once a Legal Separation Decree or Judgment has been finalized, they cannot be amended into a Dissolution. Since the parties’ marital status has not been terminated, neither party can remarry. When a Petition for legal separation is served on a party, he or she can elect to change the action into one for dissolution of marriage simply by filing a Response requesting dissolution.
There are many reasons a party might elect to file for Legal Separation instead of a Dissolution. These include the continuation of the non-employee spouse’s medical coverage and the attainment of emergency, temporary restraining orders involving domestic violence.