While most people marry with the intent to stay together for the rest of their lives, circumstances and relationships often change over time, and couples that were once committed find that they no longer want to be together. For a variety of reasons, people who no longer want to live together as husband and wife do not wish to seek a divorce either.
In such cases, they may want to consider seeking a legal separation. There are many benefits to legally separating, but it is not an appropriate choice for everyone. As such, it is smart for people contemplating legal separation to talk to an attorney to determine whether it aligns with their goals.
At Doppelt and Forney APLC, our seasoned San Diego family law attorneys are adept at helping people protect their interests while changing the shape of their families, and if you engage our services, we will work tirelessly to help you pursue a good outcome. We frequently help parties with family law issues in San Diego and in other cities throughout the County.
The Legal Separation Process Under California Law
California is one of the few states that grants married couples the ability to legally separate. A legal separation will not terminate a domestic partnership or marriage, but it provides greater benefits and protections than simply living apart from one’s spouse.
For example, people filing for legal separation can ask the Courts to decide any disputed issue, such as whether either party should receive child or spousal support and, if so, in what amount. Parties to a legal separation can also ask the courts to determine their child custody and visitation rights.
Finally, they can ask the Courts to determine how any community property should be divided, which party bears the responsibility of paying any community debts, and any other financial rights and obligations. Orders issued in legal separation matters are binding, meaning that if one party fails to abide by the order, the other can move for enforcement and contempt.
The process of seeking a legal separation is similar to that used by those seeking a divorce. In other words, one spouse will file a petition for legal separation and pay any associated filing fee, after which a Judge will be assigned to the case. The filing party must then serve the petition on their spouse, after which the responding spouse will have thirty days to file an answer. The parties will be required to submit financial disclosures as well.
Parties seeking legal separation will usually assert that there are irreconcilable differences between them and their spouse that have caused an irreparable breakdown of the marriage. California law permits parties to seek legal separation on the grounds that their spouse has become permanently incapacitated as well.
Parties will not be considered legally separated until the Court issues a judgment granting their legal separation. The date they actually separated, which is the date that either party expresses their intent to end the marriage or engages in behavior that demonstrates such an intent, often differs from the date they are deemed legally separated. It is important to determine the date of actual separation, though, as it impacts the parties’ responsibilities and rights with regard to community debts and assets.
Divorce Versus Legal Separation
The most notable difference between divorce and legal separation is that divorce legally terminates a marriage, while a legal separation merely defines an individual married person’s rights while they live separately and apart from their spouse. Among other things, this means that divorced parties are free to remarry while legally separated couples are not. Additionally, while California law dictates that a divorce decree cannot be issued until a minimum of six months have passed since the petition for dissolution was filed, there is no cooling off or waiting period imposed in legal separation actions.
There are many reasons a married couple may choose to file for legal separation rather than divorce. Some people are opposed to divorce for religious or cultural reasons, while others may want to leave the door open for the possibility of reconciliation. In some cases, people may not be eligible to obtain a divorce under California law because they do not meet the residency requirement but want to legally define their rights in the interim.
A person who wants to file for divorce in California must show that either they or their spouse lived in the state for at least six months and in the County where the petition for dissolution is filed for at least three months, while there is no residency requirement for seeking a legal separation under California law.
People who are legally separated can choose to file joint tax returns as well, while divorced parties no longer have that option. In many instances, legally separated individuals may also be able to remain on their spouse’s health insurance or retain other marital benefits.
Talk to a Trusted San Diego Family Law Attorney
Married couples who no longer want to be together but are not ready to legally end their marriage may want to consider legal separation as an alternative to divorce or simply living apart. Legal separation has significant implications, and it is important for anyone considering filing for separation to talk to an attorney before moving forward.
The trusted San Diego family law attorneys of Doppelt and Forney APLC possess the skills and resources needed to help people protect their interests in family law disputes, and if you hire us, we will diligently pursue the best result available under the facts of your case.
We regularly represent parties in family law cases in San Diego and other cities in San Diego County. You can contact us through our online form or by calling us at 800-769-4748 to set up a meeting.
What Is a Legal Separation and How Is It Different From a Divorce?
In San Diego Family Law Court, the procedure for legal separation is almost identical to that for divorce. All of the same forms are used and the legal analysis is the same whether a divorce or legal separation. In all legal separation or divorce cases in San Diego Superior Court, there are recurring issues: child custody; child visitation; spousal support; child support; division of assets; division of debts; attorney fees and others.
The California Family Law Codes which apply to a legal separation are the same for divorce. For example, the Judicial Council Form [FL100] is used for the Petition for both legal separation and divorce. There are, however, some very important distinctions. One is that, after a Judgment of Legal Separation, you are still legally married.
If you want to ever remarry, you will need to file for Divorce, and most do not want to go through this process once and [certainly] not twice for most spouses in San Diego.
What Are Grounds for Legal Separation?
In San Diego Family Law Court, there are many grounds listed which may constitute the reason for the legal separation. First, for a legal separation [or divorce as same for this legal analysis] the grounds are permanent legal incapacity to make decisions and/or irreconcilable differences. Many cases filed in San Diego Superior Court are not filed for legal separation and are filed for divorce.
Also, there can be a request to void [nullify] a marriage based on bigamy or incest. In addition, there can be a request for voidable [nullity] marriage due to prior existing marriage or unsound mind or the age of the petitioner at the time of the marriage or force or fraud or incapacity. These grounds are not mutually exclusive. Look on Page 2 Number 5 and a/b/c are listed along with 1/2/3/4/5/6 as applicable. A link to a Template Petition on the San Diego Superior Court Website.
What Are the Benefits of a Legal Separation Over a Divorce?
In San Diego Court: Superior Division: Family Law, there are benefits to a legal separation over a divorce. Most spouses favor divorce over legal separation as want to terminate their marital status and move on with their lives. Some may want to remarry, and some may not but most do not want to remain married and want to have judgment of divorce.
There are some benefits to legal separation. One major benefit is continued health insurance coverage of the nonmember spouse. In a divorce judgment, many insurance plans will not allow the divorced spouse who is a nonmember of the plan to continue coverage. In a legal separation judgment, as still married, the nonmember spouse can continue on the insurance coverage.
Some nonmember spouses may be uninsurable so this is the only solution so that they can legally separate but still have medical coverage. If your goal is legal separation this link follows from the San Diego Superior Court Website.
Contact a San Diego Legal Separation Attorney Today
Contact Us Online or call us at 858-376-4065 in Southern California.
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