What a Legal Separation in California Means to You
Provided by HG.org
While many individuals may believe that the main distinction between a legal separation and divorce in California is that separation is considered temporary and divorce is considered permanent, this interpretation is not accurate. Many separation agreements later serve as the foundation of the divorce agreement, so negotiated terms may indeed wind up being permanent, even if they were hammered out during a separation. Read on to learn more about what a legal separation might mean for you.
Inability to Remarry
Individuals who have not officially terminated their marriage or domestic partnership through divorce cannot enter into a new marriage. Likewise, they cannot legally enter into a new domestic partnership. Their marital status does not change.
Through a legal separation, spouses or domestic partners can have certain issues decided for them. One of these major issues is property matters. Spouses may reach an agreement regarding property on their own, with the assistance of a mediator or with negotiations between their attorneys. In some cases, the court may be asked to decide how to distribute assets and debts. If the court winds up with the responsibility of deciding on property distribution, there may be hearings in which the spouses present evidence, testimony and expert witnesses to discuss the value of the property and possibly the owner of certain assets or debts in dispute.
The couple may agree or may ask the court to enter an order related to how the spouses will be responsible for paying mortgage payments, utilities, health care expenses, taxes and other living expenses during the legal separation. Additionally, there may be an order or agreement regarding how certain assets should be managed during the separation, such as whether both spouses will have access to funds in joint accounts, whether any assets will be required to be sold during the separation, how income and property will be treated after the couple legally separates and whether spousal support will be required.
If the spouses had children, issues related to the children may be decided as part of the legal separation. This includes decisions related to child custody and visitation. Specifically, issues concerning the children’s residence and parenting time with each child. Additionally, child support may also be ordered as part of these proceedings.
A major deterrent for some individuals to pursue a legal separation is that it does not completely finalize the termination of the marriage. Both spouses are still legally married. However, for individuals who are not certain whether they wish to completely sever the relationship with the spouse may prefer a legal separation.
This prevents them from going through a divorce only to reconcile later after accumulating the legal expenses necessary for a divorce. Additionally, individuals who need to maintain their legal status to each other for health care or immigration purposes may prefer a legal separation because it may allow them to live apart from their spouse without having to affect their other rights.
During a proceeding for a legal separation, individuals may also ask the court to grant a protective order in case one of the spouses has been violent or threatened the other spouse or the children.
Before a couple can get a divorce in California, at least one of the spouses must have resided in the county where the action is filed for at least three months and within the state for at least six months. Individuals who pursue a legal separation do not have to meet these residency requirements. Some individuals may choose to file an amended petition to ask that the court allow the individuals to file for divorce once they meet the residency requirements.
Unlike divorce, a legal separation takes effect immediately after it is ordered.
In order to be granted a legal separation, one of the spouses must file a petition with the appropriate court, requesting legal separation. Decisions regarding child support, custody, property and spousal support must be determined either by agreement or by the court. Then, the court makes a judgment regarding the legal separation and the terms of the separation.
California spouses also have the option to enter into a separation agreement. This is a legally-binding contract between the spouses that encompasses many of the same issues that a legal separation would. The difference is that the court is not involved in the process.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.