A legal separation is analogous to a divorce in many ways. Legal separation is a procedure that allows a couple to end their marriage without having to completely terminate it or without technically getting a divorce. It is a legal action brought forward by domestic partners or married couples who desire to stay in a domestic partnership or marriage, yet they need to settle all the other matters like property division, spousal support, child support, and child custody. A legal separation results in the division of property and debts and this means that no spouse will be responsible for the other. Visitation agreements, child support, and child custody issues are determined and stated in a legal separation. With a legal separation, you will stay married to your spouse or partner and you’ll continue to share health and life insurance.
Certain couples prefer a legal separation as opposed to a divorce for religious reasons. Specifically, some religions do not condone divorce or significantly limit the reasons that would make individuals do it. Others do it for practical determinations mostly informed by the desire to retain one partner in the other’s health care scheme, social security or military benefits. Still, others file for a legal separation because they do not qualify to file for a divorce on residency grounds. Once after the residency requirements are met, a couple can then amend the action to a divorce. Those in a legal separation cannot marry someone else until after they formalize divorce. If you wondering if this is the action that would work best for you and your spouse, contact San Diego Family Law today for a free consultation and case review.
Filing for a Legal Separation in California
The process followed in obtaining a legal separation is pretty much the same as the one for filing for divorce. Couples also have the option of solving their issues outside of the courtroom through mediation. This process allows the spouses or partners to enlist the services of a skilled, impartial, third-party mediator. If you work with a mediator, he or she can assist you and your spouse to come up with common objectives and move towards resolving the contentious issues so as to achieve your goals. If mediation does not work and you and your spouse cannot agree on some issues, you can make the separation official by filing a case with the court. However, if both of you can come to an agreement without going to court, you will not have to deal with loads of paperwork.
If you take the matter to court, the legal process starts with an application requesting the court for a legal separation. Depending on the situation of your family, you may also be required to have paperwork concerning property division, and child custody and support. After filing the appropriate files, it’s important to have your attorney go through the forms to ensure they are appropriately and correctly filled and that you have chosen the right forms. The original file will be left with the court and you’ll be required to have at least two copies; one for your records and the other to be served to your spouse or partner. It’s important to ensure that the copies are stamped before the serving is done.
The next step involves revealing all your property, assets, and debts and the judge will encourage you and your spouse to try and arrive at a consensus depending on what is in your family’s best interest. At this point, you may also be required to come up with agreements for your legal separation. This may require working with a mediator or you could as well go through the mediation on your own.
You must ensure that you make it to every mediation session or hearing and if you arrive at any agreement, it should be submitted to the judge. Since the courts may work differently at this juncture, your attorney can help you know whether there are other steps that you must take after the court order is signed by the judge.
Difference between Legal Separation and Divorce in California
The obvious difference between a legal separation and a divorce is that a divorce dissolves the marriage permanently and you are not considered legally married for any other purpose including tax matters. After a divorce, every spouse is free to remarry. Even in occasions when the couple could in future decide to get back together, it will require them to formally remarry each other and acquire a new marriage license.
On the other hand, in a legal separation, the parties are still married and this means that it does not terminate a legal union. In this case, the spouses will be required to set the guidelines for the separation in an official agreement. In the agreement, specifics of temporary property division, custody, and financial support are addressed. For instance, the legal separation agreement may stipulate who remains in the family house, who gets to stay with the children and how bills such as mortgage will be settled. Getting back together for couples who are legally separated is easier since they do not need to remarry as opposed to divorced couples. In a legal separation, none of the spouses can marry someone else, since they are still legally married to each other.
Most couples use the period when they are legally separated to evaluate the chances through which they can attempt to salvage their marriage. But for others, a legal separation is the initial step towards divorce. Others still get into a legal separation and stay apart indeterminately without ever formalizing a divorce. However, a legal separation is not a prerequisite for obtaining an official divorce and you can go straight to marriage dissolution.
Separation Agreement
The official procedures for getting legally separated and obtaining a Separation Agreement are two different matters. A Separation Agreement in California is a legitimate pact that spouses who have decided to separate may enter into to handle every separation feature, especially if children are involved. For you to enter into a Separation Agreement, you do not need to go to court. The key objective of a separation agreement is to iron out all essential matters that might be encountered throughout the separation period such as:
- How the couple share expenses such as mortgage or rent, taxes, utilities, groceries and health care cost throughout the time they will be separated,
- The children’s residency,
- How they will each spend time with the children,
- If any of the spouses will pay alimony and/or child support in the course of separation
- How the assets that the couple owned will be managed in the course of the separation,
- If the couple will sell or divide any asset in the course of the separation and,
- How assets and revenue acquired after the date of the separation will be handled. Normally post-separation revenue is characteristically deemed as a separate property of the partner that made it.
Visitation and child custody
The issue of child custody and visitation is one of the key issues that the court is expected to make an order on in a legal separation case. In a separation, chances are the parents will not live together and the court must, therefore, determine and issue a court order that stipulates where the children will spend their time and the spouse who will be responsible for making important decisions for the child’s life depending on what is in the child’s best interests.
Child Support, Partner Support, Family Support and Spousal Support
The court is also obliged to issue a court order that gives the particulars of support payments in a legal separation. In California, it is the duty of all parents to financially support their children and this means that court orders that touch on child support are common. These orders make it an obligation for parents to make the necessary payments to support their children, even in circumstances where the parents live separately, are in a registered domestic partnership or are not married. In the event that a registered domestic partnership or a marriage is terminated, both parties can anticipate having a life that’s at the same level of quality similar to that which was created in the course of the registered partnership or marriage. This means that spousal support or partner support may be issued in a legal separation. If the court order combines child and partner or spousal support into a single order, then it is referred to as a family support order.
Division of Property and Debts
Each of the spouses will go their different ways after the separation is formalized. Due to this, all assets, property, and debts will be required to be split between the parties as stipulated by California’s community property law, which states that all the property that the couple acquired including debts and assets in the course of the marriage should be split at almost 50/50. The court will, therefore, be required to issue an order concerning the division of debts, assets, and property. From the definition, separate property denotes everything that a spouse attained prior to the marriage, in the course of the marriage through inheritance or gift and later when the parties were already separated. Devoid of any other agreement, each spouse should get half of the remaining community estate.
Conditions That You Must Meet To File for a Legal Separation in California
Just like in divorce, you are also required to meet certain conditions to be eligible to file for a legal separation California. Contingent on whether you are in a registered domestic partnership or marriage, the residency requirements may be a little different.
Married Couples
For those in marriage and contemplating a legal separation, either of the spouses must be a resident of California at the moment the filings are done. It is worth noting that it could be hard to implement some court order in situations where you and your partner are both in different states. In the case of divorce, you or your spouse must meet the residency requirement which states that you must have lived in California for at least 6 months. Also, you must have stayed in the county where you’re filing the divorce for at least 3 months. However, in the case of legal separation, these residency requirements are not considered, but if you want to file for divorce afterward, the issue will be looked into.
Registered Domestic Partners
If you’re in registered domestic partnership that was formalized in California, you may file for a separation regardless of whether or not you currently live in California. However, if your domestic partnership was registered in another state, and only one partner resides in California you may be eligible for a legal separation in California. Just as with married couples, individuals who do not live in California and are in a domestic partnership may face difficulties that come with trying to enforce some court orders that may result from the separation.
Why You Should Hire an Attorney
Although a separation agreement would appear to be a straight-forward procedure it is important for both sides to hire skilled attorneys to help in the interpretations of the law and also mediation. Certain uncomplicated issues might be decided directly between spouses or partners in the event that the couple has little property, no children, and few debt. However, for many individuals drafting and discussing an elaborate agreement that will be used in court the process may be complex. Since the discussions and resolutions made in a legal separation can have a life-changing impact, it is important to retain an attorney who can make sure that your rights are protected.
Additionally, connecting with somebody just before separation can be difficult. In such situations, effective communication can be a challenging task. Whereas certain spouses stay approachable and arrive at an agreement easily, many couples cannot expect to achieve much in a one-on-one negotiation without getting emotional and obstructing any meaningful chances of a resolution. In such a case, an attorney can facilitate negotiation with the other spouse.
San Diego Family Law Attorney will assist you in drafting a separation agreement that will help you meet your needs without disrupting your current standard of living. We will work to negotiate support payments, custody and visitation if children are involved. Our attorneys have extensive experience in all areas of family law and have a proven track record in helping clients find the best solutions when faced with marital difficulties. Contact us today at 619-610-7425 for a free initial consultation with a qualified attorney.
