Legal Separation in California

A description of a California legal separation, and how to determine if it is right for you.

Most people assume if they are not sure that whether they want a divorce, they should file for a legal separation, instead. However, a legal separation is not a trial separation, and is not designed to give couples a time out if hey are having problems.

A legal separation is the filing of a lawsuit against which gives the court the power to decide on any and all issues related to your marriage. This includes dividing up all your property, deciding who your children should live with and how much time they should spend with each parent, deciding how much support should be paid, and deciding who should pay what debts. A legal separation proceeds just like a divorce, except at the end, the spouses are not divorced, and additional paperwork must be filed in order to finalize the divorce.

There are several significant differences between a legal separation and a divorce. For instance, spouses must agree to a legal separation. If not, a legal separation automatically becomes a divorce. Second, there is no waiting period. In the state of California, it takes six months to become divorced. However, a legal separation can happen immediately. Finally, there is no residency requirement for a legal separation. A spouse does not have to live in the state for six months before filing the action. Most importantly, a legal separation will not allow the spouses remarry in the future.

A legal separation is not an appropriate lawsuit to file simply because a spouse is unsure about a divorce. I a spouse does not want a divorce, the filing of a legal separation almost always ends up in the other party requesting a divorce. If there is hope of reconciliation, a party should not take legal action of any kind. Generally speaking, it is usually appropriate to file a legal separation only in a very narrow set of circumstances: Divorce is against the spouses religion and neither party plans on remarrying; the parties need to remain married for an additional period of time in order for one spouse to be eligible to claim an interest in the other's Social Security benefits; one spouse has significant medical issues which prevents him or her from obtaining private medical insurance; neither spouse has lived in the state long enough to file a regular divorce action.

In most situations, a legal separation is only a temporary solution and the action is filed with the intention of eventually obtaining a divorce.

A legal separation is not an appropriate way to protect a spouse's assets when the parties are separated and the other spouse continues to accumulate debt. If the parties are separated and there is no hope of reconciliation, the debts acquired by each spouse are that spouse's separate obligation. If the spouses are attempting to reconcile and the parties are concerned with protecting their property rights, they should enter into a written agreement which makes it clear that any debts either party accumulates is the sole and separate obligation of the party who acquired them.

Gina Famularo has been licensed as a California attorney since 1997, and currently is a partner in a law firm in Temecula, CA.

Copyright Famularo & Associates
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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. For specific technical or legal advice on the information provided and related topics, please contact the author.

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