No matter how much you want to make your marriage work, there may be some reasons that compel you to consider filing for legal separation. Before deciding to go for it, it’s paramount that you know how the repercussions of a legal separation vs. divorce in California would affect you, your spouse, and your children. While consulting a family law firm is still the best step, consider this as a brief introduction to determining the best option for your family.
Legal separation and divorce: the significant difference
A legal separation is a court order that mandates a married couple’s rights and responsibilities while still married but living apart. It draws a marital relationship to a close without really ending the marriage. Thus, legal separation keeps the marriage legally intact, and the domestic partnership continues.
On the other hand, divorce is the legal process that terminates the marital relationship. It dissolves the couple’s legal relationship as spouses, making each one officially single again and remarry. Thus, the critical factor is the permanence of the couple’s decision to let someone go.
Is legal separation allowed in California?
Yes. California allows legal separation for married couples.
- As a no-fault state, one spouse can argue that he and his better half have irreconcilable differences. It means their marriage has permanently crumbled, and their relationship is beyond saving.
- Another ground for filing legal separation is when one spouse permanently lacks the legal capacity to make decisions. It has to be substantiated with competent medical or psychiatric evidence.
Should both parties agree to legal separation?
A Petition for Legal Separation must be filed with the family law courts and served on your spouse for the process to begin.
- Yes, both parties must agree that a legal separation is the best course of action for their situation.
- If your spouse disagrees, he/she can file a Response and Request for Dissolution of Marriage, in which case the court will proceed as if the case is one for divorce rather than for legal separation.
- If your spouse does not file a response to your petition within thirty (30) days of receiving the petition, the petition will be dismissed.
What are the benefits of legal separation?
There are many reasons why people choose legal separation over divorce, and consequently, it results in benefits in various aspects.
- Marriage is extremely important for people who have firm religious ideas and values, and breaking the vows they made may be considered a violation of their religious beliefs and values. Legal separation may be an option to consider if you want to split from your spouse while maintaining your religious convictions.
- Legal separation can be likened to breathing fresh air. It allows a couple to resolve issues like child custody and financial concerns such as child support while keeping the marriage intact and determining what they want.
- A legal separation provides for the continuation of health insurance and other benefits, including certain social security benefits that would otherwise be terminated in the event of a divorce.
- You still retain the right to inherit from one another if you so choose. Legal separation ensures that each spouse’s legal rights to property benefits are preserved in the event of the other spouse’s death.
- Couples who have been together for ten years or longer may be eligible to receive a portion of their spouse’s health insurance and social security benefits. Military spouses who have been married for ten years can receive benefits under the Uniformed Services Former Spouse Protection Act.
- It is also one way of keeping the family together. Many parents also find that formally separating from their spouse before divorcing helps their children adjust better to the divorce.
- The court can reverse legal separation. After 90 days of granting the petition for legal separation, both spouses may ask the court to reverse the legal separation and reinstate their marriage.
- Legal separation, in contrast to divorce, does not include a residency requirement. You do not have to have been a resident of California for at least six months or a resident of the county where you filed for at least three months before you may file for legal separation.
Many people who have just relocated to California and wish to end their marriage choose legal separation rather than a divorce since it allows them to begin the process immediately rather than wait months.
What issues are resolved in a legal separation case?
Child custody
It refers to the rights and responsibilities between parents for taking care of their children.
The following factors will be considered by the court when determining what is in the best interest of the child: health, safety, and welfare of the child; whether either parent has a history of abuse against the child or the other parent; the nature and amount of contact between the child and both parents; whether either parent has a history of illegal use of controlled substances, alcohol, or prescribed medications; and any other factor the court deems pertinent.
At the beginning of January 1, 2012, the court considered a child’s preference about custody. As long as the youngster is at least 14 years old and has the maturity to express a desire, the court will pay great consideration to that preference.
If the court determines that the preferred custodial arrangement is not in the child’s best interests, the judge will award child custody based on the other considerations considered. The court can also consider a younger child’s desire for custody, but it will not give that opinion as much weight as an older child’s preference.
Child visitation
It refers to the parenting time given to the noncustodial parent when the other parent has sole custody of the child.
-
Visitation on a scheduled basis
It is a circumstance in which the parents have a court order that specifies all of the details of their child’s time division, including drop-off and pickup times, holidays, and any other special occasions that may arise.
-
Visitation should be reasonable
This sort of open-ended visitation is often most effective for parents who have a positive relationship with their children.
-
Visitation under the supervision of a professional
When the noncustodial parent cannot be trusted with the safety and/or well-being, the court may order supervised visitation. It is necessary for these situations that visitors be accompanied by another adult or by a professional agency.
-
There will be no visits.
In the end, there is always the option of not having any visits at all. In this case, the dangers of injury to a kid’s physical or mental well-being are so significant that the court is reluctant to award any form of in-person time with the youngster. Essentially, the custodial parent would have “sole physical custody” in this circumstance.
Spousal support
This financial support is ordered by a court to give to their spouse during separation.
When compared to courts in other states, California judges have a great deal of latitude in making alimony rulings, particularly in the case of children.
According to California law, a court must take into account anything that is “fair and equitable,” which includes the following:
- parents’ earning capacities
- contributions to one another’s professional development
- the ability of the supporting party to make a payment
- the requirements of each party in light of the marital standard of living
- assets and liabilities based on the duration of the marriage
- whether a party with custody of a kid will be able to work without “unduly interfering” with the child’s interests
- their ages and health conditions
- history of domestic violence
- tax consequences
- comparative hardship
Division of property
Property refers to anything that can be purchased or sold, such as a house, a building, cars, a piece of furniture, or clothing.
Property can also be defined as anything that has monetary value, such as bank accounts, cash, property, plans for retirement, stocks, and others.
When the couple legally separated, the court makes decisions about how to divide the property acquired by the spouses or domestic partners during their marriage.
Debt allocation
Credit card obligations, personal loans, and tax obligations need to be divided up to ensure that everyone is treated fairly.
Summing up, legal separation is an option that is worth exploring. Above all, it can be a tool to help get your life back on track.
Connect with us now for advice on how to weigh your options – legal separation vs. divorce – so that our family law firm can help you decide the best one for you. Our trusted family law attorneys at 805 Law Group are ready to provide you with personalized and compassionate services to help you resolve what matters most.
