On their first visit, I always ask my clients about their date of separation. Most have an exact date that they can give me, but for others it is not that easy. Either they are not sure when exactly it “happened” or the spouses disagree on the date.

What does “Separation” mean?
If the date of separation is unclear or the parties disagree, the court will look at two different tests: an objective and a subjective test.

Objective Test:
To answer the objective test, the court will determine when you started living apart from each other. That usually happens when one of you moves out of the family home. In today’s tough economic times, however, that is no longer an option for some, because it often is too expensive to maintain two separate residences. Even if spouses are still living in the same home, there are ways to ensure physical separation.

As California Courts put it, “Our conclusion does not necessarily rule out the possibility of some spouses living apart physically while still occupying the same dwelling. In such cases, however, the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof. (Marriage of Norviel) If this is a concern for you, you should always consult an attorney for more information.

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In my last article, I compared divorce to legal separation in California, highlighting the differences and similarities. In this second part, I will summarize the grounds for a divorce or legal separation and the requirements you must meet before you can start your case in a California court.

Grounds:
California is a “no fault” state, which means that you can ask for a divorce or legal separation without having to prove that your spouse did something wrong, for example cheated on you. This also means that your spouse does not need to agree to a divorce or separation.

However, California Family Law requires that there are “irreconcilable differences” between you and your spouse. That simply means that you have substantial marital problems and that there is no hope of getting back together and saving the marriage.

A second possible ground is incurable insanity, but it is rarely used. To prevail on this ground, you must prove the insanity of your spouse and that it is incurable, which is often difficult to do.

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Most people who are unhappy in their marriage choose to divorce. Others decide to get a legal separation. In many ways, divorce and legal separation have a lot in common. However, there are also differences of which you need to be aware so that you can choose the solution that is best for you and your family.

Similarities:
Both a legal separation and a divorce fully separate your lives. You can sort out the same issues and request orders for the determination of custody and visitation, child and spousal support, the restoration of your former name, and the division of all your property.

Differences:
While a divorce judgment effectively ends the marriage and gives you the right to remarry, a judgment of legal separation does not. It will separate your lives in all other aspects, but you will stay married. That is the main difference and the one you need to consider.

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