Family Law Corner: Difference Between Legal Separation and Divorce - a ''Real Housewives'' Breakdown


Another “Real Housewives” franchise marriage is in trouble:  celebrity plastic surgeon Paul Nassif filed for legal separation from his wife, businesswoman Adrienne Maloof, whose business holdings include the Sacramento Kings and the Palms Casino and Resort in Las Vegas.  According to gossip website TMZ and US Weekly magazine, Nassif only filed after he and Maloof agreed that he would file for legal separation so the parties could continue to try to save their marriage.
 
When a party files for legal separation rather than divorce, the responding party has a choice of which cause of action to seek.  A legal separation may only proceed to judgment by the consent of both parties or by default.  If the responding party does not want a legal separation, then the matter will proceed as a divorce.

The difference between legal separation and divorce can be confusing.  The biggest difference is that a judgment of dissolution dissolves the marriage while legal separation still leaves the marriage itself intact.  A judgment of legal separation allows the parties to file taxes as single people (26 U.S.C. §2), divide their assets and debts, and address support and other issues just as they would in a dissolution action.   In addition, unlike a judgment of dissolution which requires a six month waiting period to become effective, a judgment of legal separation is final immediately upon entry.

There are many reasons to choose legal separation over dissolution of marriage.  One reason may be that a party has not been a resident of California and/or the county of filing long enough to obtain a dissolution (one of the parties must be a resident for 6 months in California and 3 months in the county of filing).  In those cases, the person who filed usually amends their Petition to request  a dissolution later.   Another reason is to ensure that the legal status of marriage remains in place, but that all financial ties are broken.  For example, a judgment of legal separation may be necessary where religious beliefs disallow divorce or where the availability of health insurance is dependent on the marriage.  It may also be useful to maintain the marriage status in order to qualify for derivative social security benefits or for military benefits.

If Maloof and Nassif are choosing legal separation simply because they are not ready to dissolve their marriage, the filing would allow the couple to stop accruing further community property rights and obligations while they decide if their marriage is salvageable.