Un-Separation

[William Mossie]

My wife and I are in our sixties and plan to sell our home in the next few years to move closer to our children.

We have lived in our Silicon Valley home for more than thirty years and have over $500K in capital gains.

The problem is that we had a “four month” domestic problem in 1998-99. At that time we got a legal separation and put our residence in my wife’s name and our rental house in my name. We were only actually separated for less than four months. We have been reunited since March 6th, 1999.

According to the California courts, we are still legally separated.

We want to "Undo our Separation" that was filed with the court so that we can each qualify for a $250K exemption?

What legal actions do we have to take to qualify?

Can we just deed our properties back to community property?

Can we file as married?

Do we need to tell the court that we made a mistake two years ago and we want them to forget it?

Thank you for any help you can give us in resolving this problem.

Sincerely, Bill

 

[I AM ALWAYS LIABLE]

My wife and I are in our sixties and plan to sell our home in the next few years to move closer to our children.

We have lived in our Silicon Valley home for more than thirty years and have over $500K in capital gains.

The problem is that we had a “four month” domestic problem in 1998-99. At that time we got a legal separation and put our residence in my wife’s name and our rental house in my name. We were only actually separated for less than four months. We have been reunited since March 6th, 1999.

According to the California courts, we are still legally separated.

We want to "Undo our Separation" that was filed with the court so that we can each qualify for a $250K exemption?

What legal actions do we have to take to qualify?

Can we just deed our properties back to community property?

Can we file as married?

Do we need to tell the court that we made a mistake two years ago and we want them to forget it?

Thank you for any help you can give us in resolving this problem.

Sincerely, Bill

My response:

A judgment of legal separation does not terminate marital status. It is an alternative to dissolution and is generally sought upon breakdown of the marriage where for religious or other personal reasons the petitioner does not want the legal status relationship absolutely severed. Spouses who have come to a parting of the ways often seek a legal separation instead of a dissolution in order to retain eligibility for medical insurance that would otherwise be lost by a termination of the marriage. This can be a very important consideration where a party has a preexisting medical condition (for which new coverage would not be obtainable) or insufficient financial resources to defray the cost of conversion or replacement coverage.

A judgment of legal separation leaves the marriage bonds intact. In effect, however, the parties remain "married" in name only, without the concomitant rights and responsibilities that attach to marital status. They cannot enter into a new marriage unless and until the existing marriage is dissolved by death or judgment of dissolution; but the judgment finally adjudicates the financial issues between the parties, including determination of their support obligations and a division of their community estate (except that, pursuant to Ca Fam § 2556, unadjudicated CP assets and debts remain subject to the family court's continuing jurisdiction to divide. [Estate of Lahey, supra, 76 Cal.App.4th at 1059, 91 Cal.Rptr.2d at 33 & fn. 4]

Following a judgment of legal separation, the parties acquire no further community property and owe each other no spousal duties of care and support except as ordered by the court pursuant to the judgment. [Ca Fam §§ 772, 4300 et seq.; see Estate of Lahey, supra, 76 Cal.App.4th at 1059-1060, 91 Cal.Rptr.2d at 32-33--judgment of legal separation finally determining marital property rights effectively terminates eligibility as "surviving spouse" for purposes of intestate succession through deceased spouse (see also Ca Probate § 78)]

If you are the Petitioning party to the Legal Separation, all you need to do is file a Request for Dismissal of the original Petition, and the legal separation is over, and the marriage status of the parties reverts to its original condition, prior to the entry of judgment on the Legal Separation.

All properties deeded pursuant to the Legal Separation should then be re-deeded back to the two of you (community property).

Congratulations to the two of you for saving your marriage, and getting back in love with each other. That's the way it's supposed to be !!

Live long and prosper.

Good luck to you.

IAAL