Blogs by PROD: Legal Separation
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IntroYou likely have heard people refer to couples ‘separating’, but many don't realize that this often refers to a formal, legal process. Marriages are, for the most part, intended to be a life-long commitment, and of course are filled with their ups and downs. Couples' only options are not just to remain together full force or file for divorce; many couples choose to separate. This blog will focus on legal separation in California.
Legal SeparationA huge part of marriage or domestic-partnership is about sharing decision-making in most aspects of life; where you live, your finances, raising children, your daily routines and more. Navigating these challenges can be difficult for even the best suited pairs. Sometimes circumstances change dramatically after getting married and lead to one or both spouse(s) feeling the need for a time-out or distance, though they may not be ready to end the marriage. Some may never want to ever divorce for financial, religious or legal reasons, yet still decide they need more distance, and for the court to help guide the process. This is referred to as a legal separation, and it has important legal consequences which vary dependant upon your state.
In California, separation does not legally terminate a marriage. Instead, it uses the courts to determine the rights and responsibilities of spouses who decide to live apart. The couple will still be married, but they have the help of enforceable court orders separating their finances or coordinating the custody and support of any children. Their continued marital status can also enable them to retain certain marital benefits such as health or life insurance.
The legal process for divorce and legal separation are similar in that if you are unable to agree on an issue(s), the court will step in and decide for you. In addition, any orders issued by the judge in a legal separation have the same power as if issued in a divorce. But a key difference between legal separation and divorce is that the couple is still married at the end of a legal separation, and neither spouse can remarry until the court, upon a spouse beginning the filing process, issues a divorce.
The grounds for filing for either a legal separation or a divorce in California can be no-fault. This means that you don't have to prove the ‘fault’ or failing of your spouse in order to be granted a divorce or to legally separate. The two general grounds for either in California are irreconcilable differences, or incurable insanity/permanent legal incapacity to make decisions.
The next steps in filing are also very similar in both processes. A spouse must file a petition, pay the filing fee, have the other spouse served with said petition, and file financial disclosures with the court. However, in contrast to a dissolution, there are no residency requirements for a legal separation.
A couple is not legally separated until the court issues a judgment. However, the date of actual separation can determine the parties' rights and responsibilities especially as it relates to community property. In California, an actual separation occurs where a spouse expresses his or her intent to end the marriage and engages in conduct consistent with an intent to end the marriage. This means the date that the intention to end the marriage is expressed and followed through on with action, meaning no continued intimacy, or moving out, etc etc. If you were to move out but not say your intention to separate, the date wouldn't be until you did so. Likewise if you said your intention, but then make-up with your spouse, are intimate and staying with them and acting as partner