When a married couple is having troubles in their marriage, there can be many internal and external forces keeping the couple together. The forces could include children, religion, peer pressure, fear of losing medical benefits or the simple fact that one party does not want to be a divorcee. In California, there is a process to keep a couple married but legally separate their financial interests. This process is known as a legal separation.
What is Legal Separation?
To be clear, a judgment for legal separation is different than a couple merely separating from each other before a marriage dissolution. A legal separation is not a process designed to give couples time to decide whether or not they want to be together. Filing for legal separation is basically filing a lawsuit against each other and giving the Court the jurisdiction to decide any and all issues regarding your marriage. This includes the Court making property divisions, child custody orders and financial support orders. An action for legal separation proceeds just like any dissolution proceeding, except at the end of the process, the couple is still married.
How to Obtain a Legal Separation
Obtaining a legal separation is almost identical to obtaining a divorce decree. One of the married couple files a Petition with the Court of the correct jurisdiction seeking a legal separation. However, unlike a Petition for dissolution of marriage, both spouses must agree to a legal separation. If one spouse does not agree, the action for legal separation automatically becomes an action for divorce. Further, unlike an action for dissolution, when filing for legal separation there is no residency requirement for legal separation and there is no mandatory waiting period.
Effect of Legal Separation on Parties Who Subsequently Want to Obtain a Divorce
Parties who are contemplating legal separation as a step towards dissolution should understand that a legal separation and dissolution are two completely distinct court cases. If one follows a legal separation all the way to judgment and then subsequently decides to enter into dissolution he/she would have to do all the same paper work, incur all the same filing fees and go through a process very similar to the legal separation to effectuate a divorce. This effectively doubles court costs, court fees and attorney fees. A party contemplating legal separation versus divorce or divorce versus legal separation should see the advice of competent counsel to understand the unique difference between the two and determine which process is actually the best course of action given the circumstances and ultimate goal.
Legal Separation Is Not a Path to Follow Lightly
Like initiating any legal proceeding, much thought and consideration must given into the advantages and disadvantages filing for legal separation. It is imperative that each party fully understands the consequences of filing for legal separation over filing for dissolution. At the end, the parties are still legally married to each other. Seeking the advice of a knowledgeable attorney as to what the goal of the legal proceeding is a must to determine whether legal separation is the correct path to follow.
Disclaimer
Dena Bez is a licensed California Attorney whose practice focuses on family law including divorce, custody disputes, domestic partnership issues and small business counseling and representation.
This Article is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using the article or the information contained in the article you understand that there is no attorney client relationship between you and the publisher. Any information in the article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
