No one gets married intending to be divorced later. Regrettably, some relationships don't work, and there will come a moment when the couple will discuss a legal separation decision. If you and your spouse aren't sure that divorce is the best course of action, legal separation could be ideal. Separating can serve as a cooling-off period to see if you can save your marriage. It's a non-permanent and less severe option than divorce. In this guide, you will learn how legal separation works, circumstances in which it might be the preferable option, issues covered, how to file legal separation, and your legal rights.
What is a Legal Separation in California?
A legal separation is a substitute for divorce. Partners choose the alternative to end their relationship without ending their marriage.
Like the conventional divorce, when a person files for separation, they:
- should allege that their partner is permanently incapacitated when they entered their marriage, or
- have irreconcilable differences.
California uses the no-fault rule for legal separation. In other words, you don't require any allegation to acquire the separation. Although the ground for legal separation is that irreconcilable differences should be significant, any reason is typically enough for the judge to order your separation.
When using the incurable insanity of your spouse as a reason for the separation, you should present evidence, such as competent psychiatric or medical testimonies, that the insane partner was permanently insane during your marriage. It can be challenging to establish, making it essential to hire an attorney.
If you cannot agree on issues associated with divorce, the judge will make the decision. Moreover, all court-issued orders have the same power as if issued in a divorce.
Please remember that you are still married at the end of your legal separation process. That means you cannot remarry until the judge grants a divorce upon your spouse's request.
Legal Separation Residency Requirement
Different from divorce in San Diego, there aren't six-month residency requirements to acquire legal separation. If either of the partners lives in the state, they could bring for the legal separation. Nonetheless, you should bring your legal separation petition to a county where either of the partners lives.
The residency rule for same-sex marriage is different from opposite-sex marriage. You can acquire your separation for your same-sex marriage if neither of you lives in Golden State, provided all the statements below are correct:
- You entered your marriage in the state
- Neither spouse lives in a state that allows same-sex marriages
If none of you lives in California, you should file your petition in the county where you entered the union.
Why Legal Separation is More Preferable to Divorce
Legal separation might be your solution because:
- It allows both of you to take time away from your marriage conflict and decide if you truly want to divorce. During this period, you can undergo a couples counseling program and find new methods of handling disputes when they arise in your marriage. Sometimes, people love each other so much but cannot live together.
- Generally, once you are divorced, your employer's health plan will no longer cover your ex-spouse. Unlike divorce, legal separation allows retention of healthcare insurance, among other advantages brought to an end by divorce.
- Legal separation could be a great option if any party has not been working for an extended duration or the couple is struggling financially. It gives the stay-at-home partner a chance to become financially stable while still enjoying their marriage's benefits.
- If your personal or religious beliefs do not allow divorce, separation will enable you to remain married while living separate lives. Couples sometimes stay married for the sake of their children.
- If you decide to get a divorce, the judge could convert your legal separation agreement into a divorce settlement agreement. It can save you the cost of a long and complicated family court process.
- Staying married for more than ten years means you can receive social security benefits for a partner. If at retirement, a partner will obtain more social security than their spouse, it's to their benefit to stay married to receive more social security benefits.
- If you are married to a military spouse, you can choose to remain married for ten years to receive benefits under the Uniformed Services Former Spouse Protection Act.
- You can take advantage of tax benefits from filing jointly. Most people believe that they'll save a lot of money by filing their tax returns jointly, so they choose to separate. Additionally, there might also be estate-planning implications like preserving your marital deduction. Nevertheless, since federal tax law can be complicated, you should consult with your attorney or tax advisor.
Deciding to separate instead of divorce can be complicated. Weigh the available options carefully and speak with a qualified family law professional so you can make choices that will safeguard your property and protect your children, rights, and future.
Legal Separation Agreement
The legal separation agreement differs from the process of lawfully obtaining separation. Partners that have chosen to separate might enter into a separation agreement (a binding and legitimately contract that handles various aspects of separation, such as child visitation, custody, or support, alimony, and property division). A person does not have to go to court to reach a separation agreement with their spouse.
The agreement permits you to address crucial issues that might arise during your separation period, such as:
- Where your children will reside
- When your children will visit their non-custodial parent
- How you will foot living expenses like mortgage, taxes, utilities, groceries, and hospital bills
- Whether any partner will pay alimony or child support during the legal separation
- How you will manage your property when you are separated
- Whether you will sell or divide any assets during your separation period
- How you will treat your income and property after your date of the separation (usually, the court treats any income acquired after the separation as separate property. However, you might want to ensure the provision is in writing to avoid any confusion later).
Although your separation agreement is a binding and formal contract, it has a different effect from a marriage dissolution or court-issued legal separation.
Preparing for Legal Separation
Undergoing a separation isn't easy and could result in financial and psychological stress. Ensuring that you're prepared for this process can help safeguard your legal rights and minimize emotional turmoil.
Be Sure You Want a Legal Separation
If you aren't sure about ending the marriage, you can consult with a clergy member or a family therapist before making any decision. After you decide to initiate the separation process, it might be impossible or challenging to reconcile. Therefore, you should be confident that you're dedicated to the decision before taking the next step.
Collect All the Relevant Financial Documents
Only a careful review of the required financial documents can determine the distribution of marital assets and payment of your child support and alimony. As a result, you should collect all documents you might require for your legal separation case.
If you should access your joint bank account records, tax returns, and other financial documents identifying your debts and property, make copies of the paperwork before your initial consultation with a family law legal expert.
Since your partner can change codes and passwords to the shared accounts once they learn that you are contemplating separation, you should download records of your accounts.
Create a List of Your Debts and Property
Some of the items to list include:
- Real estate
- Motor vehicle
- Mutual funds and brokerage accounts
- Notes
- Credit card debts
- Mortgage
- Retirement accounts
Take the list and other backup financial documentation when you speak to your lawyer during your initial consultation.
Also, make an inventory of family and household possessions. List many items like jewelry, appliances, artwork, and furniture. You can take videos or photos of the items.
Refrain From Social Media
Avoid posting anything about your decision to separate on social media. It would help if you remembered that the Internet does not forget, and the judge could use your posts against you one day.
Look for Employment Before Separating
If you can't count on financial support from your partner, you should ensure you can afford the living arrangements after legal separation and enjoy benefits like health insurance. That means you take a look at your family expenses and then prepare a budget. If you are not employed, you should look for employment.
Additionally, it would help if you understood your credit score.
Carefully Consider the Child Custody Goals
Getting a separation means both of you will be sharing your children's custody under a specific, defined schedule. Your custody schedule will depend on factors like:
- Every party's travel and work obligations
- Circumstances resulting in the separation
- Your children's age
Carefully Handle Your Benefits and Taxes
Make copies of income tax records for the last six (6) years. Federal and state tax agencies aren't party to marital separation, so taxes owed will be your obligation.
If you are considering a separation so that you can maintain healthcare insurance, understand the policy language. Some insurance providers include language that will bring the coverage to an end should legal separation occur.
Also, consult with a financial expert to be sure that you meet the legal requirements regarding retirement benefits and pension plans.
Hire an Experienced Family Law Attorney
A family lawyer specializes in alimony, child support, child visitation, child custody, and division of marital debts and assets. They offer legal counsel and negotiate legal actions on your behalf. They can take care of correspondence with the third party and ensure the court proceedings are appropriately executed.
Even if your legal separation is amicable, there are many reasons why retaining a legal professional is essential, including:
- Knowledgeable about procedural issues and family law
- Have an impartial view
- Can offer emotional support
Dos and Don'ts of Legal Separation
The following can help your family transition during the separation without destroying your functionality as a parent and your property.
Treat Your Spouse the Same Way You Would Treat Your Business Partner
You will continue working together on the resolution of issues stemming from your relationship breakdown. And if you have children together, you will continue working together and co-existing as parents for years to come, including attending weddings, graduations, and birthdays.
Consequently, it would help if you did not do anything in the heat of the moment that could result in tension later. Dealing with your emotions respectfully and constructively is an essential component of moving on. The following are the basis of a decent relationship yet frequently disregarded or compromised during separation:
- Answer phone calls, text messages, and emails
- Avoid badmouthing your co-parent to the children or on social media
- Fulfill your promises
- Be courteous
- Communicate essential information
- Offer the necessary documentation timely
- Don't treat your partner like an enemy
Avoid Making Considerable Changes
If you have been footing your family expenses and bills, continue paying them until you and your spouse agree on handling costs in the future.
It isn't the time to purchase a new home or travel around San Diego. In other words, neither of the spouses should spend or withdraw money without the other partner's consent. You can make arrangements with your financial institutions to require your signatures for any withdrawal from your investment accounts and savings until you divide your marital assets.
If there isn't a safety concern, do not move with your children. Your children have a right to a conducive environment. Instead, wait to move until you work out your parenting plan. Nevertheless, safety should be your priority, and you ought to seek legal assistance immediately if you need help moving to a safer location.
Wait Until You Can Start Dating Again
It is more of a strategic issue than a moral consideration. The new relationship can be disruptive to your negotiation process and separation agreement. Irrespective of who ended your relationship, a new relationship could result in intense emotions for the replaced spouse.
Moreover, your new partner might become a factor in your parenting arrangements. For instance, your boyfriend will be under scrutiny to determine whether their presence will be in your children's best interests.
How to File Your Separation
If you decide to separate from your domestic partner, you must first file a legal separation petition. It is worth noting that anything you agree on in your legal separation agreement could set precedence when you file for divorce.
Confirm California's Residency Requirements
You can refer to the residency requirements discussed in the section above.
File Your Legal Separation Petition
You can bring a legal separation petition with the family law court if you meet the residency requirements. You can do it by:
- Consulting with a lawyer
- Using an online resource like a government website
- Contacting a court clerk
Please note that you will require about four hundred and thirty-five dollars to file the necessary paperwork.
File Your Legal Separation Agreement
Remember to file your legal separation agreement alongside the legal separation petition. Ensure your agreement includes issues like:
- Child support
- Child custody
- Visitation
- Distribution of marital assets
- Where you live
- Who pays what loans
Serve Your Partner Your Separation Agreement
If a person isn't bringing the petition jointly, they will have their partner served once they file their petition. Generally, the spouse has thirty days to respond to the petition.
Settle All Unresolved Matters
If your partner doesn't agree to any provision in your petition, they can bring a counter-petition. Should this occur and you cannot agree through collaboration or mediation, you will proceed to court.
Sign and Notarize Your Agreement
Once you both agree to the petition's provisions, you should sign and notarize your agreement so the clerk enters it into the court database for the judge's approval.
Whatever an individual does before the judge signs their legal separation agreement might affect case outcomes, especially those applying to custody and personal property.
Finally, get a copy of the agreement for your records and comply with the guidelines in the agreement.
Frequently Asked Questions
When contemplating legal separation, you might have many questions about the process. The section below reviews some of the commonly asked questions.
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My Spouse and I Have a Credit Card That Has Our Names. Can I Take on Payments by Myself?
The situation might present challenges for you and your partner. Even when you say you will pay your joint debt, your credit card provider isn't bound by the agreement. The company might come after the other party whenever you fail to make the payments. Should this occur, your credit rating might be negatively affected.
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Is There Anything You Need to Do Before Filing Your Legal Separation Petition as a Domestic Violence Victim?
If you're a victim of domestic violence, ensure you have a safety plan before telling your domestic partner that you are considering a separation.
Find a Seasoned San Diego Family Law Firm Near Me
Getting a separation isn't something you add to the to-do list for your Monday morning. It takes planning, negotiations, paperwork, and headaches. Where does that leave you?
For many years, San Diego Family Law Attorney has worked with couples facing family law issues. When you contact us, we can weigh the pros and cons of legal separation so that you can make the right decision. Allow us to handle the challenging things as you pay attention to yourself by contacting our office at 619-610-7425. Our compassionate legal team will be glad to help you.
