In California, marriage partners who are ready to end their marriages have a number of legal options to choose from. Before you file for divorce, discuss the pros and cons of divorce, annulment, and legal separation with an Orange County divorce attorney.
The legal separation option is an alternative that couples should seriously consider. A legal separation in California differs from divorce and from annulment in a number of important ways
What does a legal separation accomplish? What does it entail? Is a legal separation the best option for you and your marriage partner? If you continue reading, you’ll find the answers to most of your questions about legal separation.
WHAT CONSTITUTES A LEGAL SEPARATION?
In California, simply separating from one’s marriage partner is not enough to constitute legal separation. Spouses must submit papers to the court to establish their legal separation. You’ll need a good divorce attorney to help you with the legal forms and paperwork.
With legal separation, the spouses are still married legally, but they live in different residences. Legally separated spouses who are parents must make arrangements for visitations and child support.
WHY DO SOME COUPLES LEGALLY SEPARATE RATHER THAN DIVORCE?
The main advantage of legal separation is that it provides spouses with “personal space” and with time to reevaluate their marital situation. Separation is also the practical option for spouses whose religious tenets forbid divorce.
But generally speaking, legal separation is the realistic alternative for marriage partners who do not want to share a residence but can’t get divorced or are not prepared to get divorced.
IS THERE A RESIDENCY REQUIREMENT FOR LEGAL SEPARATION?
Other couples legally separate to keep the financial and insurance benefits they would lose by divorcing, and there’s one further advantage. Newcomers in California can sometimes “get around” the residency requirement for divorce by filing first for a legal separation.
Here’s how that works. Although one partner must be a California resident for at least six months before he or she may file for a divorce, there isn’t any residency requirement for obtaining a legal separation.
California law allows marriage partners to convert a legal separation into a divorce once the separation is formally granted – or at any point in the process. A “conversion” request may be filed by either spouse.
In other words, you can file for legal separation on your first day as a California resident, and after six months, when you’ve satisfied the residency requirement, you can convert the separation to a divorce.
IS LEGAL SEPARATION ALWAYS A PRELUDE TO DIVORCE?
Legal separation does not dissolve a marriage; eventually, the spouses must resolve their issues or initiate a divorce procedure. According to the U.S. Census Bureau, approximately fourteen percent of the couples who legally separate will eventually reconcile their marriages.
In California, both spouses must consent to legal separation. A spouse may decline to participate in the legal process while allowing it to move forward without objection. However, if one spouse objects to a legal separation, the other may have to file for a divorce or stay in the marriage.
HOW ARE DIVORCE AND LEGAL SEPARATION SIMILAR?
The paperwork required for a legal separation is almost as complicated and confusing as the paperwork required for a divorce. Both legal separation and divorce in California must be based either on “irreconcilable differences” or on one partner’s incurable insanity.
Both procedures require a full disclosure of each partner’s finances. During either process, the spouses can resolve any disputes – asset and property division, spousal support, child custody, and/or child support – or the court will settle those issues if the spouses cannot reach agreements.
WHAT DOES A LEGAL SEPARATION DECREE PROVIDE?
A separation decree from a California court spells out the details of the final separation agreement, just like a divorce decree. Whether the spouses have reached an agreement or a settlement is imposed by the court, the separation decree provides the details.
A separation decree is a binding contract that sets forth the rights and responsibilities of each spouse while they reside separately. The decree should specify who your children live with, who pays which bills, and how items like vehicles and the family home will be divided and managed.
Divorce and separation decrees both set forth arrangements for spousal support (alimony), and if there are children, both decrees spell out the arrangements for custody, visitation, and child support.
HOW CAN YOU PROTECT YOUR INTERESTS IN A LEGAL SEPARATION?
If either partner does not comply with the terms and conditions of the separation agreement, it may be enforced by the courts. Any arrangements that are set forth in a separation agreement may also be included in the final divorce decree if the spouses eventually divorce.
Your divorce lawyer can make sure that there is nothing in the terms and conditions of a legal separation agreement that poses any risk to your long-term best interests.
Nothing in the law requires anyone to obtain a legal separation. You and your spouse can always choose to live apart without any formal agreement or legal process. But obtaining a legal separation agreement is the best way to protect your rights, assets, properties, and other interests.
A separation isn’t a dissolution of the marriage. Legal separation, for example, allows one partner to retain coverage by the other partner’s health insurance, and neither partner can marry another person while a legal separation is in effect.
HAVING THE RIGHT DIVORCE ATTORNEY IS ESSENTIAL
Whether you are divorcing or legally separating, both of you can save time and money by reaching as many agreements as you can before launching a divorce or legal separation proceeding.
It’s essential to have the advice and insights of the right Orange County divorce attorney if you are considering divorce or legal separation. These four steps get the legal separation process started in California:
1. Decide on the basis of the separation: irreconcilable differences or incurable insanity.
2. Let your attorney help you complete and file the paperwork for a separation.
3. A filing fee is required. It may be waived in some cases for low-income filers.
4. Your spouse will be served the appropriate court papers.
If you are considering separation or divorce in Orange County or anywhere in southern California, you must have sound legal advice and effective legal representation.
Your children and your interests must be protected. If you separate or divorce in California, a good attorney’s help is essential, and it’s your right.
