2021Family LawSolange Rousset

Choosing Between Legal Separation and Divorce

Are you new to California, but are considering divorce?  Do your religious principles prohibit divorce, but you cannot live with your spouse due to acrimony or abuse?  Legal separation is still an option.  In California, you can separate your finances, divide joint marital property, and decide custody and child support issues through a legal separation without getting divorced.

What is a Divorce?

Divorce terminates a marriage completely.  The marriage is dissolved in its entirety through a court proceeding.  Divorce divides marital property, determines child custody, and settles child and spousal support issues.  Finally, divorce returns each spouse to single status so they are no longer legally bound to one another. (Cal. Fam. Code § 2300.)  This means that each divorced spouse can no longer receive marital benefits and that they are free to marry someone else.

What is a Legal Separation?

While a divorce terminates a marriage completely, a legal separation does not end the marriage.  If one spouse decides to terminate the marriage, and moves out of a shared residence but does nothing more, their legal status remains the same—married—though they are informally separated.  In order to obtain a legal separation, the spouses must go through the courts.  Legal separation, like divorce, involves a court process which divides marital property, determines child custody, and settles child and spousal support issues.  Since, after legal separation, the couple is still married, each partner can maintain benefits reserved for spouses, including health insurance, social security, or immigration benefits.  Additionally, since the couple remains married, neither spouse can marry someone else.

How do you get a Divorce or Legal Separation Judgment?

Residency.  Before initiating a divorce proceeding in California, one of parties must have been a resident of the state of California for six months and a resident of the county where they intend to file for divorce for three months. (Cal. Fam. Code § 2320.)  This requirement is for divorce only—a party may initiate legal separation proceedings at any time.  Once the residency requirements for divorce are satisfied, any party may convert a legal separation proceeding to a divorce proceeding. (Cal. Fam. Code § 2321.)

Irreconcilable differences.  Divorce and legal separation are similar court proceedings.  In both divorce and legal separation, you may request that the court issue its decree based on the “irreconcilable differences, which have caused the irremediable breakdown of the marriage,” or one spouse’s permanent legal incapacity to make decisions. (Cal. Fam. Code § 2310.)  Although proof of the irreconcilable differences is required, this is generally satisfied through the testimony of the parties stating simply that the differences exist and that the marriage cannot be salvaged.

Proceedings.  Since both legal separation and divorce proceedings decide issues such as the division of marital property, spousal support, child custody, and child support, the proceedings are quite similar.  The process includes one party filing a petition, the other party filing an answer to the petition, both parties exchanging financial information, and both parties attending hearings to decide the issues that are at stake during the proceeding.  In both cases, the parties are required to make a good faith attempt to decide the issues though collaboration.  Each party has the right to request specific information from the other party through discovery.

Timing.  The length of time and the difficulty of the process for both divorce and legal separation depends on how long the parties have been married, whether the parties have minor children in common, and what marital property or debt is at issue.    No matter what, California requires a waiting period before a divorce can be finalized.  A divorce judgment can be issued at any time, but, if issued within six months of the start of the divorce proceedings, it will not be final until six months after the petitioner serves a copy of the divorce summons and petition on the respondent or the respondent files an answer. (Cal. Fam. Code § 2339.)

In sum, several factors will affect your decision to either legally separate from or divorce your spouse.  Court procedures are meticulous, and difficult to undertake without the assistance of an experienced family law attorney.  An experienced family law attorney, like those at Madison Law, APC, can help you determine what is best for you.

Solange Rousset Esq.



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