Services: LEGAL SEPARATION

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What is Legal Separation?

Legal separation is for couples who want to live apart, but do not want to get a divorce. Legal separation does not end a marriage. This means that you cannot remarry or enter into a domestic partnership.

What are the Grounds for Getting a Legal Separation?

California Family Code § 2310 outlines the two grounds for getting legally separated:

  1. Irreconcilable differences, which have caused irremediable breakdown of the marriage,
  2. Permanent legal incapacity to make decisions.

Irreconcilable Differences

Irreconcilable differences are grounds which a court determines are substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved (Cal. Fam. Code § 2311). Irreconcilable differences sufficient to justify a legal separation must be substantial, as opposed to trivial or minor. These marital problems must have weakened the marriage relationship so much that the legitimate objects of matrimony (goals of marriage) have been destroyed, and there is no reasonable possibility of elimination, correction or resolution of the problems.

Permanent Legal Incapacity to Make Decisions

Permanent legal incapacity to make decisions may only be used as a grounds for legal separation with proof, such as competent medical or psychiatric testimony, that the other spouse permanently lacks the legal capacity to make decisions (Cal. Fam. Code §2312). Permanent Legal incapacity to make decisions used to be called “incurable insanity”. When a legal separation is granted on these grounds, it does not relieve a spouse from any obligation imposed by law as a result of the marriage for the support of the spouse who lacks legal capacity to make decisions, and a court may make an order for support (Cal. Fam. Code §2313).

How do I Get a Legal Separation in California?

If you do not want to get a divorce, or for religious or personal beliefs cannot get divorced, you can seek a legal separation. A legal separation separates the property of the parties so that one is not legally responsible for the other and decides issues of child custody, visitation, and support. A legal separation does not terminate any life or health insurance.

It is best to consult with a lawyer early on in the legal separation process to save time and money as you navigate the complicated court process.

Legal separations, though very similar to divorces, are very different in two ways: 1) legal separations do not end the marriage, and 2) both parties must consent to the legal separation for a court to render a legal separation judgment (Cal. Fam. Code §2345).

As long as one spouse is living in California, they can file for a legal separation. On the other hand, a divorce can only be granted in California if one of the parties is a resident of California for at least 6 months and a resident of the county where divorce is filed for 3 months (Cal. Fam. Code §2320).  If neither party satisfies the residence requirement for divorce at the time the proceeding began, when one party does meet the requirement, they can request that a dissolution of marriage, or divorce, may be entered instead (Cal. Fam. Code §2321). Sometimes, a person who does not yet meet the residency requirement for divorce will file for legal separation first, and then amend the action from a legal separation to a divorce once the residency requirement is met.

Getting a legal separation judgment does not mean you cannot get a divorce later on. If you have gotten a legal separation, but later change your mind and want a divorce, California Family Code §2347 allows this.

When spouses prepare to get legally separated, they may disagree on how to divide property, divide their time with their children, or how much support to provide their spouse after. You can resolve these issues outside of court by going to mediation or consulting a lawyer to reach a marital stipulated agreement. This stipulated agreement, or judgment, is then simply brought to the court for the court to make a formal order that the agreement is enforceable.

When the spouses cannot reach their own agreement regarding property division, child custody, or support issues, they may leave it to a court to decide. You might agree on some issues, but not all. Whatever issues cannot be resolved on your own can be left for a judge to decide. Leaving any issue for a judge to decide requires a trial date, and most courts will require you to attend a settlement conference prior to trial. When you separate the legal issues in a case to bring only a few to trial, this is called bifurcation.

What are Issues That Must be Decided in a Legal Separation?

Among others, the most common issues that must be resolved in a legal separation are property division, child custody, visitation and support, and other support issues.

Property

Property is anything that can be bought or sold, such as your house, car, furniture, electronics, and clothing. Property can also be anything that has value, such as bank accounts, 401(k) plans, stocks, life insurance, or a business. A court makes decisions on how to divide the property that spouses bought during their marriage. Even if you have already agreed on how to divide your property, the court will still make a formal order during the legal separation process. In a legal separation, you may still be liable for your spouse’s debts.

Child Custody, Visitation, and Support

If you have children together, you and your spouse will need to decide issues of child custody, visitation, and support. Child custody includes legal custody and physical custody, meaning who can make decisions about the children’s health, education, and life and who the children will live with after the divorce. If one parent gets sole physical custody, then the other parent will typically get a visitation schedule. Courts will usually try to ensure that both parents are as involved in the children’s lives as much as possible, keeping the children’s best interests in mind. This will include the issue of child support, where both parents will be held financially responsible for caring for their children depending on their income and abilities.

Spousal Support and Division of Property

Other support issues may include spousal support. This can include providing money for attorney’s fees so that the spouse who cannot afford legal representation will get legal representation in the court proceedings (Cal. Fam. Code §2030 and §2032). Spousal support after a legal separation is also sometimes called alimony.  California Family Code §4300 state that a person has a duty to support their spouse. When spouses are living together, one spouse shall support the other using their own money and separate property if there is no community property (Cal. Fam. Code §4301). Separate property is anything you owned before the marriage or gifts and inheritances given to one spouse. Community property is anything and everything that spouses own together, including everything you bought or obtained while you were married and even debt. The source of the money used to buy something can usually help you determine what is separate property and what is community property.

When spouses are not living together by agreement, then one spouse is no longer responsible for supporting the other unless there is an additional agreement to do so (Cal. Fam. Code §4302). Under California Family Code §4337, the obligation of a party to continue paying alimony is only terminated by the death of either party, the remarriage of the person being supported, or if the parties agree in writing to terminate alimony. Spousal support is different from child support because it is not calculated by a computer program. California Family Code §4330 states that a court will determine what is just and reasonable for spousal support and for how long it should be paid, depending on the standard of living during the marriage and other complex circumstances.

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