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Legal Separation

Legal separation refers to a court approved separation which does not permanently end the marriage but defines the legal rights and obligations of each spouse or partner. While many perceive legal separation to be different from divorce because it is temporary, this is not always true. Today, many separations serve as the foundation for divorce and the negotiated agreements entered into during the separation process cans end up being permanent in the event of a divorce.

Definition of Legal Separation in California

Legal separation is different from informal separation because it is court-approved and all the agreements are therefore legally enforceable. Legal separation gives room for married couples to divide their assets, property, and debts without necessarily ceasing their union. This process also allows the couple to live separately, but this does not mean that they are no longer married. They also have the liberty to continue living under the same roof. Filing for a legal separation in California follows the same procedure used in divorce.

This process starts with one spouse (the petitioner) filing a petition for legal separation. This is then followed by the other spouse (the respondent) filing a response to the petition that has been filed against him or her, failure to which the matter will proceed by default. It’s compulsory for both parties to exchange disclosures. The process used in divorce for resolving child custody and support issues and dividing property, assets, and debt apply. In case a couple can’t reach a mutual agreement on all these issues, the final determination will be made by a family law judge.

Difference Between Judgment of Legal Separation and Date of Separation

The date of separation is the time that one spouse shows the intent to discontinue the marital relationship or create a break. This is the time that spouses give their views and interests on separate and community property. Usually, property gained during the marriage and before the separation is shared equally, unless there is an agreement indicating a different form allocation. The property that is acquired after the separation is considered to be separate property unless the acquisition of the property was attained using community property funds. Conversely, the judgment of legal separation is concerned with the couples’ marital estate. The legal separation process addresses how the assets are to be distributed when the legal separation status has been finalized.

How Long Does the Process Take?

The California divorce process involves a six-month time limit before a divorce can be implemented. However, when it comes to a legal separation, from the moment the spouses stop acting as husband and wife, for instance when one spouse moves out of the marital home, the legal separation can be said to have taken effect. This is due to lack of a termination of the marriage in a legal separation. The final judgment concerning legal separation can take a longer time depending on the agreement of the parties involved and whether the case will be taken to court.

When Will You Be Considered to Be Legally Separated?

You are legally separated in California once you receive the court-ordered Judgement of Legal Separation. The date of legal separation will, therefore, refer to the day when the final judgment will be given on all issues regarding the marriage such as spousal support, child custody, and division or property and assets. You are free to go your separate ways but remember, you are still legally married to your spouse.

Advantages of a Legal Separation

There are numerous benefits that a couple gets when they undergo a legal separation procedure. These include:

  • It’s indefinite. Legal separation in California gives the couple legal protections, time, and opportunity to decide whether they would like to save their marriage or get a divorce.
  • Legal separation allows the couple to stay married for immigration and healthcare purposes. For instance, a spouse may want to maintain the health insurance coverage, which would not be the case if divorced.
  • It’s a preference for individuals who would not like to get a divorce due to their religious or deep-rooted personal reasons

Legal Separation Residency Requirement

In California, a six (6) month residency requirement applies in the case of divorce, but not when seeking a legal separation. A petition for a legal separation can be filed if at least ones of the spouses lives in California. However, the petition must be filed in the county of residence. There is a slight twist in a legal separation that involves same-sex couple in California. A legal separation for same-sex partners can be granted in if the following apply:

  • The couple legalized their union in California
  • Both spouses do not live in a state that allows same-sex marriages

Child Custody and Support in Legal Separation

In a legal separation, child custody matters will be treated in the same way as in a divorce situation. California courts always seek to award shared custody when possible with the aim of ensuring frequent and continuing contact between the child and both parents. However, the court will decide otherwise when joint custody is deemed not to be in the best interests of the child. Hence, depending on the situation, one parent may be declared to be the custodial parent, and the other may have visitation rights.

When it comes to the issue of child support, the family law court works to ensure that both parents are contributing to the wellbeing of the child. The courts usually implement a mathematical equation to come up with the amount that each parent has to contribute in order to support the child. In addition to this, the court also considers a few other factors like the financial state of each parent, child custody agreement, and arrangement, and the provision of a medical insurance cover for the child.

Spousal Support

The determination of whether alimony should be paid in a legal separation case has the same process just like in a divorce case. The court will evaluate the financial status of both spouse, and then make a decision that they believe is fair. The issue of spousal support in legal separation comes up because the couple is separating and in most cases, it means living in separate homes. As such, they should continue enjoying the lifestyle and benefits that came with their marriage. The partner who earns more will support the other financially.

Protective Orders

During a legal separation proceeding, a spouse can request the court to grant a protective order. This occurs when a partner turns out to be violent or has threatened the other spouse or even the children. Protective orders issued by the court prevent the other spouse from making any form of contact and must not be seen anywhere near the protected individual’s home or place of work.  

The Issue of Finality

A major put off for individuals in pursuit of legal separation is the fact that it fails to completely finalize on the dissolution of the marriage. Spouses in a legal separation still maintain their marital status. Therefore, legal separation is usually preferred by spouses that are not yet sure if they want to completely end the marriage. Some differences can be reconciled with time and legal separation prevents married couples from going through all the divorce procedures, which can cost a fortune, only to reconcile later on. Lack of finality also serves spouses who want to live apart while enjoying health care and immigration benefits without stepping on their spouse’s rights

How to File for a Legal Separation in California

There is a sequence of steps that are followed while filing for legal separation in the state of California;

Step one: Grounds for your legal separation

California Family Code Section 2310 requires couples to cite their legal grounds for filing a legal separation. The grounds must be based on either irreconcilable differences between the spouses or incurable insanity causing the breakdown of the marriage.

Step two: Obtain Form FL-100 Petition

The Form FL-100 Petition-Marriage is used to file a petition requesting for a legal separation. This form can be obtained from the local county court and can as well be downloaded from the California courts website. A family law attorney can also provide this form. The FL-100 from has options for both legal separation and dissolution of marriage. In addition to the FL 100, it is mandatory to file a Summons (FL 110), which is meant to notify the other party that you’ve filed for a separation.

Step three: Filing out the form

Since the form has both options for divorce and legal separation, you should be careful to check the appropriate box where indicated on the form. Also, complete the part of the form that requests you to clarify whether you’re seeking legal separation based on the incurable insanity of irreconcilable differences. The form also requires you to provide information concerning property and minor children. There is also a part that you can fill out to ask the court to make orders relating to child custody as well as restraining orders.

Step four: Form FL-105/GC-120

You’ll have to complete this form if you have children under 18. The content of this form works under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This form will require you to provide information detailing your child’s residences over the past 5 years. You will also find information explaining to the court what it takes to have jurisdiction over a child. This helps avoid situations where proceedings concerning the same child are being held in different states or even counties. For instance, if the other parent of your child filed a child custody petition in another state, then the court you choose will not have the jurisdiction to institute any proceedings.

Step five: Review of the filed forms

These forms can be challenging to fill but still, they must be filed appropriately and without any mistakes. You can seek the help of a family law attorney to check if you have completed the forms correctly. This is a very important step because a simple can error will be considered as ignorance and can be used to mean that you had the intent to give out false information to the court to favor you.

Step six: Payment of the filing fee

Legal fees are necessary for any legal proceedings in court. If you have a low income or you receive public benefits, you may have the option of applying for a fee waiver. The court will decide on the fee waiver request and give the necessary directions on how to proceed.

Step seven: Serving the court papers

At this point, you’re required to serve your spouse with copies of all court papers. These include the Petitions, Summons, and the UCCJEA (if you have children under 18). The original documents will be left at the clerk’s office. Serving your spouse means notifying them that they a case has been opened. The papers must be handed to the respondent physically, but not by you. You can choose to have a relative, friend, or a professional server to serve the papers. The individual chosen to serve the papers must be over the age of 18. Once the papers are served, the server is supposed to complete a proof of service form, which should be taken the clerk’s office.

If your spouse cannot be served the papers physically, you also have the option of using the mail. In this case, the service is complete five days after the papers are mailed.

Financial Disclosure

You and your spouse will be required to list out all your income, assets, debts, and expenses. The form should state who owns each property, include an estimated value for each item, and information of when the property was acquired. Completing financial disclosure can be tedious and tricky and this calls for the assistance of an attorney.

You can decide to settle your legal separation through mediation and without going to court. If you can’t agree on the issues, then your case will go to trial, and at this point, the court will have the authority to make decisions for you.

Finding a Legal Separation Attorney in San Diego

Although you may not be interested in terminating your marriage, consider the services of a qualified San Diego Family Law Attorney to help you through a legal separation. Our attorneys can assist you in every aspect of family law related to legal separation, including the filings, property settlement, alimony, child custody and visitation, child support, and mediation. Call us at 619-610-7425 to schedule a free, no-obligation consultation with one of our experienced attorneys.

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