If my husband and I legally separated 20 years ago but go back together, are we still married?
Full Question:
Answer:
A judgment of legal separation may be obtained in the State of California on the same grounds as those permitted for an action of dissolution of marriage. Legal separation is similar to a divorce in that papers are filed, there is often a custody or property settlement ordered by the court, but the parties remain married. California law allows for dissolution of marriage based upon irreconcilable differences and incurable insanity. Irreconcilable differences are statutorily defined as those differences determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved. In California, courts will divide the community property of the parties equally after setting aside to each spouse that spouse's separate property. Community property is presumed to be all property acquired by the parties during the marriage and held in joint form. This presumption may be rebutted by a clear statement in the title by which property is acquired that the property is separate and not community property or by proof that the parties have a written agreement that the property is separate property.
A separation agreement (sometimes called a Pendente Lite Order) is a formal agreement between you and your spouse. Separation and property agreements may be entered into before a divorce is filed to be effective when signed, or may be entered into after the divorce is filed to settle the case of parts thereof. It provides for support and other financial conditions until the divorce is final. If it is not in the form of a court order the agreement is not binding. A separation agreement usually contains provisions relating to child support, visitation, alimony, responsibility for joint bills, who will remain in the marital residence and who will pay for its upkeep and how to split any tax refund and tax deductions. Those provisions relating to child support are considered separable from the provisions providing for support of the parties and division of property. Provisions for spousal support provided by written agreement of the parties or orally agreed to in open court are not subject to modification. If a legally separated couple later reconciles, local law varies on the effect of the separation agreement. In some cases, the agreement may be automatically voided, in other cases the couple may sign a document declaring the agreement to be void, destroy the separation agreement, or request the judge to declare the agreement void.
The following are California statutes:
§ 1500 Fam.
The property rights of husband and wife prescribed by statute may
be altered by a premarital agreement or other marital property
agreement.
§ 1502 Fam.
(a) A premarital agreement or other marital property agreement that
is executed and acknowledged or proved in the manner that a grant
of real property is required to be executed and acknowledged or proved
may be recorded in the office of the recorder of each county in which
real property affected by the agreement is situated.
(b) Recording or nonrecording of a premarital agreement or other
marital property agreement has the same effect as recording
or nonrecording of a grant of real property.
§ 1620 Fam.
Except as otherwise provided by law, a husband and wife cannot, by
a contract with each other, alter their legal relations, except as to
property.
§ 3580 Fam.
Subject to this chapter and to Section 3651, a husband and wife may
agree, in writing, to an immediate separation, and may provide in the
agreement for the support of either of them and of their children
during the separation or upon the dissolution of their marriage. The
mutual consent of the parties is sufficient consideration for the
agreement.
§ 3585 Fam.
The provisions of an agreement between the parents for child
support shall be deemed to be separate and severable from all other
provisions of the agreement relating to property and support of the
wife or husband. An order for child support based on the agreement
shall be law-imposed and shall be made under the power of the court
to order child support.
§ 3590 Fam.
The provisions of an agreement for support of either party shall be
deemed to be separate and severable from the provisions of the
agreement relating to property. An order for support of either party
based on the agreement shall be law-imposed and shall be made under
the power of the court to order spousal support.
§ 3591 Fam.
(a) Except as provided in subdivisions (b) and (c), the provisions
of an agreement for the support of either party are subject to
subsequent modification or termination by court order.
(b) An agreement may not be modified or terminated as to an amount
that accrued before the date of the filing of the notice of motion
or order to show cause to modify or terminate.
(c) An agreement for spousal support may not be modified or revoked§ 2300 Fam.
to the extent that a written agreement, or, if there is no written
agreement, an oral agreement entered into in open court between the
parties, specifically provides that the spousal support is not
subject to modification or termination.
The effect of a judgment of dissolution of marriage when it becomes
final is to restore the parties to the state of unmarried persons.
§ 2310 Fam.
Dissolution of the marriage or legal separation of the parties may
be based on either of the following grounds, which shall be pleaded
generally:
(a) Irreconcilable differences, which have caused the irremediable
breakdown of the marriage.
(b) Incurable insanity.
§ 2311 Fam.
Irreconcilable differences are those grounds which are determined
by the court to be substantial reasons for not continuing the
marriage and which make it appear that the marriage should be
dissolved.
§ 2312 Fam.
A marriage may be dissolved on the grounds of incurable insanity
only upon proof, including competent medical or psychiatric
testimony, that the insane spouse was at the time the petition was
filed, and remains, incurably insane.
§ 2313 Fam.
No dissolution of marriage granted on the ground of incurable
insanity relieves a spouse from any obligation imposed by law as a
result of the marriage for the support of the spouse who is incurably
insane, and the court may make such order for support, or require a
bond therefor, as the circumstances require.
§ 2333 Fam.
Subject to Section 2334, if from the evidence at the hearing the
court finds that there are irreconcilable differences which have
caused the irremediable breakdown of the marriage, the court shall
order the dissolution of the marriage or a legal separation of the
parties.
§ 2334 Fam.
(a) If it appears that there is a reasonable possibility
of reconciliation, the court shall continue the proceeding for the
dissolution of the marriage or for a legal separation of the parties
for a period not to exceed 30 days.
(b) During the period of the continuance, the court may make orders
for the support and maintenance of the parties, the custody of the
minor children of the marriage, the support of children for whom
support may be ordered, attorney's fees, and for the preservation
of the property of the parties.
(c) At any time after the termination of the period of the
continuance, either party may move for the dissolution of the
marriage or a legal separation of the parties, and the court may
enter a judgment of dissolution of the marriage or legal separation
of the parties.
§ 2339 Fam.
(a) Subject to subdivision (b) and to Sections 2340 to 2344,
inclusive, no judgment of dissolution is final for the purpose
of terminating the marriage relationship of the parties until six months
have expired from the date of service of a copy of summons and
petition or the date of appearance of the respondent, whichever
occurs first.
(b) The court may extend the six-month period described in
subdivision (a) for good cause shown.
§ 2343 Fam.
The court may, upon notice and for good cause shown, or on
stipulation of the parties, retain jurisdiction over the date
of termination of the marital status, or may order that the marital
status be terminated at a future specified date. On the date
of termination of the marital status, the parties are restored to the
status of unmarried persons.
§ 2345 Fam.
The court may not render a judgment of the legal separation of the
parties without the consent of both parties unless one party has not
made a general appearance and the petition is one for legal
separation.
§ 2347 Fam.
A judgment of legal separation of the parties does not bar a
subsequent judgment of dissolution of the marriage granted pursuant
to a petition for dissolution filed by either party.
§ 2550 Fam.
Except upon the written agreement of the parties, or on oral
stipulation of the parties in open court, or as otherwise provided in
this division, in a proceeding for dissolution of marriage or for
legal separation of the parties, the court shall, either in its
judgment of dissolution of the marriage, in its judgment of legal
separation of the parties, or at a later time if it expressly
reserves jurisdiction to make such a property division, divide the
community estate of the parties equally.
§ 2551 Fam.
For the purposes of division and in confirming or assigning the
liabilities of the parties for which the community estate is liable,
the court shall characterize liabilities as separate or community and
confirm or assign them to the parties in accordance with Part 6
(commencing with Section 2620).
§ 2552 Fam.
(a) For the purpose of division of the community estate upon
dissolution of marriage or legal separation of the parties, except as
provided in subdivision (b), the court shall value the assets and
liabilities as near as practicable to the time of trial.
(b) Upon 30 days' notice by the moving party to the other party,
the court for good cause shown may value all or any portion of the
assets and liabilities at a date after separation and before trial to
accomplish an equal division of the community estate of the parties
in an equitable manner.
§ 2555 Fam.
The disposition of the community estate, as provided in this
division, is subject to revision on appeal in all particulars,
including those which are stated to be in the discretion of the
court.
§ 2556 Fam.
In a proceeding for dissolution of marriage, for nullity
of marriage, or for legal separation of the parties, the court has
continuing jurisdiction to award community estate assets or community
estate liabilities to the parties that have not been previously
adjudicated by a judgment in the proceeding. A party may file a
postjudgment motion or order to show cause in the proceeding in order
to obtain adjudication of any community estate asset or liability
omitted or not adjudicated by the judgment. In these cases, the
court shall equally divide the omitted or unadjudicated community
estate asset or liability, unless the court finds upon good cause
shown that the interests of justice require an unequal
division of the asset or liability.
§ 2580 Fam.
The Legislature hereby finds and declares as follows:
(a) It is the public policy of this state to provide uniformly and
consistently for the standard of proof in establishing the character
of property acquired by spouses during marriage in joint title form,
and for the allocation of community and separate interests in that
property between the spouses.
(b) The methods provided by case and statutory law have not
resulted in consistency in the treatment of spouses' interests in
property they hold in joint title, but rather, have created confusion
as to which law applies to property at a particular point in time,
depending on the form of title, and, as a result, spouses cannot have
reliable expectations as to the characterization of their property
and the allocation of the interests therein, and attorneys cannot
reliably advise their clients regarding applicable law.
(c) Therefore, a compelling state interest exists to provide for
uniform treatment of property. Thus, former Sections 4800.1 Civ. and
4800.2 Civ. of the Civil Code, as operative on January 1, 1987, and as
continued in Sections 2581 and 2640 of this code, apply to all
property held in joint title regardless of the date of acquisition
of the property or the date of any agreement affecting the character
of the property, and those sections apply in all proceedings commenced
on or after January 1, 1984. However, those sections do not apply to
property settlement agreements executed before January 1, 1987,
or proceedings in which judgments were rendered before January 1, 1987,
regardless of whether those judgments have become final.
§ 2581 Fam.
For the purpose of division of property on dissolution of marriage
or legal separation of the parties, property acquired by the parties
during marriage in joint form, including property held in tenancy in
common, joint tenancy, or tenancy by the entirety, or as community
property, is presumed to be community property. This presumption is
a presumption affecting the burden of proof and may be rebutted by
either of the following:
(a) A clear statement in the deed or other documentary evidence
of title by which the property is acquired that the property is separate
property and not community property.
(b) Proof that the parties have made a written agreement that the
property is separate property.
§ 2601 Fam.
Where economic circumstances warrant, the court may award an asset
of the community estate to one party on such conditions as the court
deems proper to effect a substantially equal division of the
community estate.
§ 2602 Fam.
As an additional award or offset against existing property, the
court may award, from a party's share, the amount the court
determines to have been deliberately misappropriated by the party to
the exclusion of the interest of the other party in the community
estate.
§ 2603 Fam.
(a) "Community estate personal injury damages" as used in this
section means all money or other property received or to be received
by a person in satisfaction of a judgment for damages for the
person's personal injuries or pursuant to an agreement for the
settlement or compromise of a claim for the damages, if the cause
of action for the damages arose during the marriage but is not separate
property as described in Section 781, unless the money or other
property has been commingled with other assets of the community
estate.
(b) Community estate personal injury damages shall be assigned to
the party who suffered the injuries unless the court, after taking
into account the economic condition and needs of each party, the time
that has elapsed since the recovery of the damages or the accrual
of the cause of action, and all other facts of the case, determines that
the interests of justice require another disposition. In such a
case, the community estate personal injury damages shall be assigned
to the respective parties in such proportions as the court determines
to be just, except that at least one-half of the damages shall be
assigned to the party who suffered the injuries.
§ 2603.5 Fam.
The court may, if there is a judgment for civil damages
for an act of domestic violence perpetrated by one
spouse against the other spouse, enforce that judgment
against the abusive spouse's share of community
property, if a proceeding for dissolution of marriage
or legal separation of the parties is pending prior to the
entry of final judgment.
§ 2604 Fam.
If the net value of the community estate is less than five thousand
dollars ($5,000) and one party cannot be located through the exercise
of reasonable diligence, the court may award all the community estate
to the other party on conditions the court deems proper in its
judgment of dissolution of marriage or legal separation of the
parties.
§ 2620 Fam.
The debts for which the community estate is liable which are unpaid
at the time of trial, or for which the community estate becomes
liable after trial, shall be confirmed or divided as provided in this
part.
§ 2621 Fam.
Debts incurred by either spouse before the date of marriage shall
be confirmed without offset to the spouse who incurred the debt.
§ 2622 Fam.
(a) Except as provided in subdivision (b), debts incurred by either
spouse after the date of marriage but before the date of separation
shall be divided as set forth in Sections 2550 to 2552, inclusive,
and Sections 2601 to 2604, inclusive.
(b) To the extent that community debts exceed total community and
quasi-community assets, the excess of debt shall be assigned as the
court deems just and equitable, taking into account factors such as
the parties' relative ability to pay.
§ 2623 Fam.
Debts incurred by either spouse after the date of separation but
before entry of a judgment of dissolution of marriage or legal
separation of the parties shall be confirmed as follows:
(a) Debts incurred by either spouse for the common necessaries
of life of either spouse or the necessaries of life of the children
of the marriage for whom support may be ordered, in the absence of a
court order or written agreement for support or for the payment
of these debts, shall be confirmed to either spouse according to the
parties' respective needs and abilities to pay at the time the debt
was incurred.
(b) Debts incurred by either spouse for nonnecessaries of that
spouse or children of the marriage for whom support may be ordered
shall be confirmed without offset to the spouse who incurred the
debt.
§ 2624 Fam.
Debts incurred by either spouse after entry of a judgment
of dissolution of marriage but before termination of the parties'
marital status or after entry of a judgment of legal separation
of the parties shall be confirmed without offset to the spouse who
incurred the debt.
§ 2625 Fam.
Notwithstanding Sections 2620 to 2624, inclusive, all separate
debts, including those debts incurred by a spouse during marriage and
before the date of separation that were not incurred for the benefit
of the community, shall be confirmed without offset to the spouse who
incurred the debt.
§ 2628 Fam.
Notwithstanding Sections 2550 to 2552, inclusive, and
Sections 2620 to 2624, inclusive, joint California income tax
liabilities may be revised by a court in a proceeding for dissolution
of marriage, provided the requirements of Section 19006
of the Revenue and Taxation Code are satisfied.
§ 2650 Fam.
In a proceeding for division of the community estate, the court has
jurisdiction, at the request of either party, to divide the separate
property interests of the parties in real and personal property,
wherever situated and whenever acquired, held by the parties as joint
tenants or tenants in common. The property shall be divided together
with, and in accordance with the same procedure for and limitations
on, division of community estate.