Physical Separation vs. Legal Separation
“Physical Separation” and “Legal Separation” are two different concepts under California law.
Physical Separation deals with the point in time where one or both spouses cease the intimate aspects of the relationship and have the intent to permanently remain apart. The specific requirements are detailed below. The physical separation date is often hotly disputed in family law cases because significant consequences flow from the selection of this date. First, upon separation, the earnings and accumulations of debts and assets belong to the party who generates them, unlike during marriage or domestic partnership, when almost all of the assets and debts accumulated are considered to be community property (property of both spouses). Secondly, the date of separation determines the length of the marriage or domestic partnership for purposes of calculating the amount and duration of spousal support. (See Family Code section 4336.) In order for a party asserting an earlier date of separation to prevail, they must generally establish both subjective (proof of intent) and objective evidence (behavior consistent with that intent, like moving out of the marital home).
Physical Separation is not dependent upon the filing of any legal action although it may include a filing for Dissolution of Marriage or Domestic Partnership, or a Petition for Legal Separation. Physical Separation is a consequence of two people establishing two different households with the intent to continue with their lives, separately, and on their own.
Legal Separation is a Decree or Judgment with all the attributes of a divorce judgment with one exception – marital status is not terminated. For instance, neither party can remarry or enter into a new domestic partnership until there is a later decree dissolving the marriage or upon the death of one spouse. Many spouses or partners may seek a legal separation to separate their affairs, yet remain legally married for personal, religious, or health care reasons. Legal Separation can be a beneficial (yet more costly) alternative to divorce in order to preserve certain benefits and protection for both parties.
In mediation, both parties will agree upon a date of separation when their initial action is filed (Petition/Summons and Response). Therefore, it is unlikely that the court would ever question the parties’ decision, as both initial filing documents are in agreement as to the date of separation.
A particularly contentious issue in divorce is the division of the marital property, also known as community property. Thirty-five years ago, California became the first state to enact a law announcing that community property in a marriage stops being earned when the couple starts to live “separate and apart.” The governing statute, Family Code section 771, subdivision (a) states in part, “[t]he earnings and accumulations of a spouse. . . while living separate and apart from the other spouse, are the separate property of the spouse.”
At first glance, the meaning of “separate and apart” seems simple–husband and wife break up and one party moves out, then one files for divorce. Per section 771(a), each of the spouse’s earnings when one or both of them moved out will not be counted towards the marital property subject to division during the divorce. But this simplistic and literal understanding of the statute proved difficult to apply to every situation.