Legal Question in Family Law in California

Would a legal separation protect my assets and future earnings from my husbands financial responsibilities (restitution)? Or would only a divorce protect me?


Asked on 5/21/13, 10:15 am

2 Answers from Attorneys

Legal separation and divorce are virtually identical in their financial impacts. However, there is also virtually no difference in the legal proceedings for each either. So unless there is some important reason to remain married, such as religious convictions, there is virtually no reason whatsoever to do a legal separation rather than a divorce. Back in the days of "at fault" divorce, it made sense when a couple who wanted to split for what are now called "irreconcilable differences" rather than faking an adultery case or something, to just get a legal separation. With modern on demand "no fault" divorce, however, legal separations are very rare and pretty much limited to people with religious prohibitions against divorce. You should also bear in mind a few other things. 1. If he liability arose during the marriage, all community assets remain reachable to satisfy the liability regardless of whether you divorce, separate or remain married. Only future income is protected by legal separation or divorce. 2. Because you remain legally married in a legal separation, even though you are legally entitled to shield your separate property and post-separation earnings from your husband's liabilities, that doesn't mean a creditor won't try to get to them thinking you are still married - meaning you will have to fight to establish that they are your separate assets/income.

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Answered on 5/21/13, 11:34 am
Anthony Roach Law Office of Anthony A. Roach

I agree with Mr. McCormick. If the restitution order is for something that happened while you were married, all of his separate property and all of the community property can be looked to for satisfaction of the order. A divorce would only protect you from future problems that he got into.

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Answered on 5/28/13, 3:40 pm


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