There are many reasons why a married couple would want to get separated or divorced. For some, it is infidelity, while for others, it is because of financial issues or constant arguments. Whatever reason one might have for wanting to end their union, the couple must decide on whether to get legally separated or divorced. These are two legal options you can take in California, but understanding their legal implications is important before making the final decision. The help of a San Diego Family Law Attorney will be vital in both the process of divorce and legal separation.
The Meaning of “No-fault State” in a California Divorce or Separation
California is a no-fault state as far as divorce and separation are concerned. This means that a couple can divorce without citing any reasons for it. One partner cannot allege that the other partner was at fault, explaining their divorce or separation. Instead, every annulled marriage is done so on the grounds that the couple had irreconcilable differences, which led to the collapse of the marriage. However, when dividing property or handling issues such as alimony, the court may want to know the actual reason for the divorce.
In California, when a marriage fails, the couple can either get divorced or legally separated. Deciding on whether to separate or divorce can be a little confusing if the couple does not understand in detail what each of that entails. To make the best decision for both of them, the couple needs to recognize the legal as well as emotional implications of both legal separation and divorce, then weigh their options. An experienced San Diego family attorney can help a lot during this time, through advice, support and ensuring that the couple gets exactly what they want and deserve when they decide to end their marriage.
Divorce vs Separation
Divorce and Separation are almost similar, with the same kinds of effects. Both will legally give the married couple a distance between them. By the end of a divorce or separation, both parties will live separately, their finances will be separate, one will have full custody of the children and the other will be paying child support. All their marital properties and debts will be divided equally and in case of need, one partner will be paying spouse alimony to the other as required by the court. In both, there is a very important division that will be created between the husband and the wife, as well as boundaries that each partner will be expected to live by.
However, divorce is different from legal separation. When one is divorced, the marriage has formally been annulled and the two parties will no longer be considered married. With that, you will be free to marry or to enjoy your life freely, just as an unmarried person would do.
A legal separation, on the other hand, separates the couple but the two continue being legally wedded to each other. In that case, you will still call yourself married and you will mark “married” in papers requiring your marital status. Since you are still legally married, one partner cannot proceed to marry another person. Also, the two partners can become heir to each other, even though they are no longer living together. Any child of a legally separated wife will be considered her husband's unless there is irrefutable doubt to prove otherwise.
Reasons to Get a Legal Separation Instead of Divorce
Some people choose to get legally separated first before they get a divorce; other people go for divorce straight away. Whatever option you go for is a personal preference. For people whose personal or religious beliefs do not advocate for divorce, a legal separation will work for them. The separation permits them to stay in the marriage even though they live very different lives from each other.
Legal separation could also work for a couple that is not fully decided about what they want to do. With the separation, you can keep the relationship intact for some time. It also keeps you linked to one another. The time you are legally separated can be used to resolve all the issues you had, and a couple could end up back together.
With a legal separation, one partner can depend on the other for some benefits including pensions and Social Security. This is important for a spouse that is not financially stable.
Legal separations are sometimes used as a stepping stone to divorce. Divorce procedures are long, tedious and can be overwhelming. Taking a legal break from each other as you finalize the divorce is a great idea. When legally separated, the couple can resolve important issues that will make their divorce process smooth, such as financial issues and custody matters.
The most important thing to note is that legal separation can be reversed. You can always get back together; after all, the couple is still legally married. A divorce is irreversible. In case the couple resolves all their differences, they will have to go through the entire marriage process again, which is time-consuming and costly.
In cases where children are involved, legal separations are easier on them. Divorce is emotionally harsh on children. Legal separation does not sound so bad and it can give hope to the children that their parents may, in the end, get back together.
Legal Separation and Divorce in California
California law allows married couples to seek legal separation but on certain grounds. It could be a great way for a person to separate from their spouse if divorce is not an option for them. There are important things that married couples need to understand first before they can consider seeking legal separation:
The other spouse must agree to it
One person is not allowed to make decisions for the other regarding divorce and separation. For legal separation to be allowed, the other partner must give consent. However, if one partner serves the other with a petition for legal separation and they refuse to participate in the process, legal separation could be granted. If the other partner files a response to that petition but does not agree to the legal separation, the couple will have to petition for divorce straight away.
The legal requirements
In matters of divorce and separation, California is called a no-fault state and so, the separating couple does not need a reason to file for divorce or separation. One can go for incurable insanity of the other partner or irreconcilable differences. There are legal requirements though, for instance, the couple must have lived in California for at least six months before filing for divorce. When it comes to seeking a legal separation, this requirement is not there. After filing for divorce, a divorcing couple is expected to wait for another six months before the divorce is finalized, which is not a requirement when separating legally.
The procedure for both separation and divorce
In most states including California, filing for divorce and finally getting it is a long, tedious and complicated procedure. Things are almost the same as legal separation. This is because both separation and divorce follow a similar procedure. The law allows the couple to enter into an agreement with each other as a way to quickly and effectively resolve any issues they have in their marriage. If this is not possible, the court intervenes and the decisions are made through a trial. Both divorce and separation are much simpler in the state if there are no children involved, there are no real estate properties or the couple has just a few assets and debts. It will also be easier if the couple was married for less than five years.
Declarations
Both divorce and separation have decrees in California, and in both cases, the declarations address the same issues. These declarations are important as they address important issues between the separating/divorcing couple, such as custody matters, visitation and child support. The decree will also clearly show how the family property has been divided between the couple. The terms provided in such decrees are usually legally bound.
Converting one to the other
The law allows a couple to convert a legal separation to divorce after the separation is finalized or even before it is finalized. The couple can quickly change their mind and decide to end things once and for good. For this to be granted, the court must receive a request for conversion from both or even one of the partners. This will only require additional paperwork and with the guidance of a good family attorney, you should be able to get it done as quickly as possible. It is however not possible to reverse a divorce.
Reasons to Choose a Legal Separation
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The married couple enjoys a tax benefit, which remains if they stay married
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Legal separation is an easier way to get back together if there is still hope for the marriage to work. A break from the other may make it easy for the couple to solve issues they have been battling in their marriage, and then they can start afresh after a few months of being apart
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If you are facing residency restrictions, a legal separation is much easier to file. This gives you a legal agreement before you can become eligible to file for divorce
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If one partner is qualified for benefits such as medical benefits and other government benefits, and the other partner wants to keep those rights after separation
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If one partner harbors conflicting beliefs about divorce, either for personal or religious reasons
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If one partner is financially unstable and the other one is willing to continue supporting him/her after separation to ensure that they can at least pay their bills
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If both partners are not ready to go through a divorce or negotiate a divorce settlement. Even with a legal separation, the financial interests of both parties will be protected the same
Reasons to Choose Divorce
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If one or both partners want to get married to other people at some point in their lives, a divorce is the best option
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If one partner or both partners want to separate financially from their spouses for good, except for child support (when children are involved) and alimony (when required)
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If there is no hope in redeeming the marriage and both parties are sure that they want to completely end their marriage
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If there isn’t any financial benefit in choosing a legal separation. In that case, it is not viable to spend money and time on legal separation, and then do the same for divorce
Simple Procedure for a Legal Separation in California
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The first step is in contacting a good family law attorney to help you with the process. There are so many legal procedures you may not know about, that an experienced attorney will be aware of. Secondly, you need help with filing for legal separation and tons of advice on how to go about it every step of the way
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Settle for one of the two accepted legal grounds for separation/divorce. You could choose to go for irreconcilable differences or your partner’s incurable insanity
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With that, you can proceed to file for legal separation in a family court. Your attorney will provide you with a form that features two options: separation and divorce. If both parties are in agreement, you can proceed to file for a legal separation
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The form to file is FL-100 and should be filed in a local court. There are two provisions on the form, for separation and for divorce, so ensure that you check the box for separation. You will be required to provide certain details about your family, including details about your children and your assets. If both parties have not agreed on matters child custody and child support, the person filing for separation can request the court to rule over the matter
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For couples with minor children, file the form FL-105/GC-120. This is the form that will establish whether the court has jurisdiction over the children if one of the parents resides in a different state
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Once all the forms have been filled, a filing fee must be paid by the applicant
Note that these are very important forms and, therefore, should be correctly filled. An experienced family law attorney will be able to guide you through the process.
If your petition is received, the court will prepare the papers and serve you with copies. You are required to serve your partner with a copy of the same, by hand or mail.
This procedure is more or less the same as a divorce procedure. In matters of divorce, one partner files a petition with a local court, then the petition is served to the other spouse, who has about a month to respond to the petition. If both are in agreement, they will be involved in the divorce proceeding. Through their attorneys, they will exchange information and related documents that will help come with an effective divorce settlement. If both parties do not agree during their meetings with their attorneys, the matter will go to trial and the court announces its verdict.
Similarities in Both Procedures
In California, legal separation and divorce are similar in the procedure; the only difference is in the end results. First of all, the procedures are complicated in both. You will need the help and support of an experienced attorney who is familiar with all the processes, paperwork and the terms provided by the court.
The processes are the same, starting with the filing of the petition, serving the other partner with the petition and deciding on child custody/support matters as well as asset division. In both cases, spouses can come to a legal agreement, with the help of their attorneys instead of going to court for a settlement.
What is the Role of an Attorney in Legal Separation/Divorce?
An experienced family attorney will file all legal documents on your behalf, making the work easier for you as well as ensuring that you are not missing out on anything that may derail the process.
Your attorney will also take part in any mediation sessions you might decide to have with your partner especially when coming up with a separation settlement. Your attorney will be there as your guide and adviser, ensuring that your best interests are protected.
If the matter is taken to a family court, for instance, if you could not agree on certain matters with your spouse, your attorney will represent you in the court proceeding. Again, he/she will have your best interests at heart, to ensure that everything will be ruled in your favor.
Find a San Diego Family Attorney Near Me
Whether you have decided to get legally separated or divorced, the help and support of an experienced San Diego Family Law Attorney are crucial. There are lots of processes, procedures, and terms that you are unfamiliar with, which an experienced attorney will handle on your behalf. Call us today at 619-610-7425 and let us help you resolve the matter efficiently.
