You might be familiar with divorce, but what about legal separation? In California, legal separation allows couples to live apart while still legally married. Like divorce, it addresses important issues like how property is divided, whether one spouse will support the other financially, and who will care for any children.
Understanding legal separation is becoming increasingly important as more couples seek alternatives to divorce. It’s a distinct legal process with its own specific implications. To help you understand the ins and outs, this article offers a comprehensive overview of legal separation in California.
Understanding legal separation: The basics
A legal separation is a court-ordered arrangement that allows a couple to live apart while still being legally married. The court will issue orders about your finances, your property, and your kids, just as it would in a divorce.
Key differences from divorce
The primary difference between legal separation and divorce is that divorce ends the marriage, while legal separation does not. If you are legally separated, you’re still married and can’t remarry.
Legal separation can be a temporary step you take while deciding whether to divorce, or it can be an alternative to divorce.
Grounds for legal separation
In California, you can get a legal separation if you and your spouse have irreconcilable differences, meaning you can’t get along, or if one of you has an incurable mental illness.
Why choose legal separation?
People choose legal separation instead of divorce for a lot of different reasons:
- Religious beliefs: Some religions prohibit or discourage divorce. Legal separation allows couples to honor their faith commitments while addressing problems in their marriage.
- Financial considerations: Legal separation can help couples maintain health insurance coverage for a non-employee spouse, keep filing joint tax returns, and protect social security benefits.
- Personal and emotional reasons: Sometimes, legal separation is a “trial separation” that allows partners to work on their relationship. It can also provide a step for people who don’t feel emotionally ready for a divorce.
- Residency requirements: You don’t need to live in California for a specific amount of time to file for legal separation. You can file as soon as you move to the state.
The Legal Separation Process in California
If you’re considering a legal separation in California, here’s a breakdown of the steps involved:
Filing the Petition
The first step is to file a Petition for Legal Separation with the court. You’ll use the same forms as you would for a divorce, but you’ll check the box indicating that you’re seeking a legal separation instead.
Serving the Spouse
Next, you must officially notify your spouse that you’ve initiated a legal separation. This involves serving them with a summons and a copy of the petition.
Negotiation and Settlement
Once your spouse has been served, you’ll need to negotiate the terms of your separation. This includes things like how your property will be divided, whether spousal support will be paid, and if you have children, issues related to child custody and child support. Mediation can be a helpful tool for reaching agreements.
The Separation Agreement
After you’ve negotiated the terms, you’ll create a formal separation agreement outlining everything you’ve agreed upon. This agreement must be approved by the court.
Final Hearing and Judgment
Finally, you’ll attend a final hearing where a judge will review and approve your separation agreement. If everything is in order, the judge will issue a judgment of legal separation, making your agreement legally binding.
Key Considerations and Legal Implications
A legal separation in California, while distinct from divorce, involves many of the same legal considerations. It’s important to understand these issues before proceeding.
Property Division
California’s community property laws will apply, meaning any assets or debts acquired during the marriage are generally divided equally. Separate property, owned before the marriage or received as a gift or inheritance during the marriage, is typically retained by the individual owner. Figuring out what’s community property and what’s separate property can be tricky, and dividing it all fairly can be even harder.
Spousal Support (Alimony)
The court will determine whether spousal support, also known as alimony, is appropriate. Factors considered include the length of the marriage, the earning capacity of each spouse, and their contributions to the marriage.
Child Custody and Support
If you have children, a legal separation requires establishing custody arrangements, parenting schedules, and child support obligations. Child support is calculated based on California’s guidelines, taking into account each parent’s income and the amount of time each parent spends with the child or children.
Tax Implications
You might still be able to file your taxes jointly while legally separated, which could have some financial benefits. It’s always a good idea to consult with a tax professional to get specific advice for your particular situation.
Healthcare Coverage
A legal separation could mean the non-employee spouse loses health insurance coverage. It’s important to explore options for continued coverage, such as COBRA or obtaining an individual policy.
Legal Separation vs. Divorce: What’s the difference?
So, what are the key differences between legal separation and divorce in California?
- Marital Status: With legal separation, you’re still legally married. Divorce, on the other hand, ends the marriage.
- Remarriage: Because you’re still married after a legal separation, you can’t remarry. After a divorce, you’re free to marry again.
- Residency Requirements: You don’t have to live anywhere specific to get legally separated in California. For divorce, you need to live in California for six months and in the county where you file for three months.
- Changing to Divorce: If you start with a legal separation, you can later change your petition to a divorce petition once you meet the residency requirements.
How Can a Family Law Attorney Help?
Legal separation can be difficult to navigate, and it’s important to protect your rights. A family law attorney can help by:
- Explaining the legal process.
- Protecting your rights and interests.
- Helping you negotiate and mediate with your spouse.
- Advising you about the financial and tax consequences.
- Reducing the emotional stress of the situation.
In Closing
In California, legal separation is a court-ordered alternative to divorce that has its own requirements and consequences. It’s not right for everyone, but it can be a good option for some couples.
Before you make any decisions about your relationship, it’s important to talk to a qualified attorney in your area. A lawyer can help you understand your options and make sure your rights are protected.
Choosing the right path for you and your family requires careful thought and planning. Make sure you’re making informed decisions based on your own unique circumstances and goals.