California Legal Separation Attorneys (California Family Code 2310-2348)
A legal separation is an alternative to divorce when couples no longer want to live together, but do not want to end their marriage, or are unsure that they want to end their marriage. Much like a divorce, a legal separation can involve issues of child custody and visitation, child support, spousal support, and property division. However, unlike a divorce, after the issues of the legal separation are decided, the couple remains married.
If you are going through a difficult period in your marital relationship and are unsure whether you should file for a divorce, a legal separation may be the answer for you. While a legal separation is similar to a divorce, there are differences that will allow you to evaluate your relationship, in order to conclude whether your marital relationship can be repaired.
This aspect of California family law can be very complicated. Therefore it is essential that you speak with an experienced California legal separation attorney.
The attorneys at Wallin & Klarich have successfully helped thousands of clients with their legal separation cases for over 30 years. We can help you, too. Visit our testimonials page to see what some of our clients have to say about us.
This longstanding reputation has helped us achieve the highest of merits, including a 5 out of 5 AV rating on Lawyers.com, a 10 out of 10 rating on AVVO.com, and an A+ rating from the Better Business Bureau.
Contact our legal separation lawyers today at (888) 749-7428 for professional legal advice about your case.
Legal Separation Residency Requirement
Unlike with divorce, there is no six (6) month residency requirement to obtain a legal separation in California. If at least one of the parties to the marriage lives in California, he or she may file for a legal separation in California. However, like with divorce, the petition for legal separation must be filed in a county where at least one of the spouses resides.
The residency rules for same-sex marriages are somewhat different than opposite-sex marriages. A legal separation of a marriage between a same-sex couple may be obtained in California, if neither party resides in California, if both of the following apply:
1) The marriage was entered in California;
2) Neither party to the marriage resides in a state that recognizes same-sex marriages.
If neither party resides in California, then the petition for legal separation should be filed in the county where the marriage was entered.
Grounds for a Legal Separation
The grounds for a legal separation are the same as the grounds for a divorce. Under California Family Code Section 2310, a legal separation may be based on the following grounds:
1) Irreconcilable differences which have caused the irremediable breakdown of the marriage;
2) Incurable insanity of one of the parties, at the time the marriage was entered into.
It is important to note that California has adopted the “no-fault” system for legal separations. This means that you do not need any allegations of fault to obtain a legal separation in California. While the requirement is that the irreconcilable differences must be substantial reasons to separate, generally any reason is sufficient for the court to order the legal separation.
When citing incurable insanity of a party as a reason for a legal separation, you must submit proof, including competent medical or psychiatric testimony, that the insane spouse was incurably insane at the time of the marriage. This can be very difficult to prove. Thus, you should hire an experienced family law attorney to assist you in your legal separation matter.
Difference between Legal Separation and Divorce in California
There are several differences between legal separation and divorce. These differences include:
- A legal separation will not change your marital status. This means that you will remain legally married to your spouse unless you go through the divorce process;
- Many see this as a benefit because either spouse’s rights to certain benefits, such as social security and medical insurance, will not be terminated if the parties remain legally married.
- Unlike divorce, both parties must agree to a legal separation;
- You will not be able to re-marry while you are legally separated;
- There is not a residency requirement for obtaining a legal separation. Before you file for a divorce in California, at least one party must have resided in California for at least six (6) months. You can obtain a legal separation no matter how long you have lived in California;
- Legal separations take effect immediately, whereas with divorces, you must wait at least six (6) months after you serve your spouse with the divorce petition.
Reasons for Choosing Legal Separation over Divorce in California
While legal separation and divorce are similar, and may eventually lead to the same outcome of termination of the marital status, there are several reasons that married couples choose legal separation over divorce. If any of the following reasons apply to you, a legal separation might be more beneficial than a divorce:
- You cannot divorce due to your religious beliefs;
- Neither you nor your spouse has resided in California for at least six (6) months and you do not want to wait to file an action;
- You or your spouse wants to retain the tax, military, or medical insurance benefits of marriage;
- You and your spouse want to determine whether it is possible to reconcile.
Determining whether you should file for a divorce or a legal separation can be a difficult task. A skilled Wallin & Klarich legal separation attorney can assist you with this difficult decision so that you are aware of all of the rights and obligations associated with your decision.
The Legal Separation Process
The process for obtaining a legal separation is similar to the divorce process. An initial Petition for Legal Separation must be filed with the family law courts, and served on your spouse. After the petition has been served, your spouse will have thirty (30) days to file a response to your petition. Depending on the complexity of your case, you may have to attend several hearings, and even trial, to determine how to resolve issues of child custody, visitation, child support, spousal support, and division of the property and debts acquired during the marriage.
Child Custody and Support
Child custody issues will also be treated similarly to those in divorce cases. Courts always seek to order joint legal and physical custody of children to both parents when possible. It is California’s public policy to ensure that your child has “frequent and continuing contact,” with both parents. However, in all child custody cases, the courts will try to issue a custody order that is in your child’s best interest. Thus, in some situations, one parent may be granted primary physical custody of their child, with the other parent having visitation, if the court determines that such an order is in the best interest of your child.
When it comes to child support, the courts want to ensure that both parents are providing for their child. The family law courts use a guideline mathematical equation to determine the amount of child support to be ordered. They will evaluate several factors, including the child custody arrangement, the financial status of each parent, and whether medical insurance coverage is being provided for your child.
The process for determining spousal support payments in legal separation cases is similar to divorce cases. Spousal support orders will be determined based upon the economic condition and needs of both partners. Courts have wide discretion in ordering spousal support and can take many factors into consideration.
Division of Property
The process for division of property in a legal separation is also similar to divorce cases. California is a community property state. Thus, all property and debt that is acquired during marriage is considered community property and it will be shared equally between you and your spouse upon divorce. All other property and debt acquired before marriage, after separation, or as a gift or inheritance is considered separate property. This means that separate property belongs only to you and your spouse will get no share upon divorce. The main difference between property division in a divorce versus a legal separation is that in a legal separation the parties merely come to an agreement regarding what will occur if the parties divorce. Then, upon divorce, the property will be divided in the manner described in the agreement. Property division matters are very complex, and whether you are seeking a divorce or a legal separation, you should consult with an experienced family law attorney to protect your rights.
Legal Separation Attorney
While legal separations are treated similarly to divorces in California, there are several key differences. Thus, it is important that you hire an experienced family law attorney who has experience in handling legal separations. Wallin & Klarich has been handling legal separations and other family law cases for more than 30 years. You can rely on the experienced Wallin & Klarich legal separation attorneys to fight to achieve the best possible outcome in your case.
With offices located in Los Angeles, Orange County, Riverside, San Bernardino, San Diego, Victorville, West Covina, Sherman Oaks, Torrance, and Ventura, there is a Wallin & Klarich family law attorney available wherever you happen to live. To speak with an experienced California legal separation lawyer today, please call us at (888) 749-7428. We will be there when you call.
Frequently Asked Questions about Legal Separation
1) My spouse and I agreed to a legal separation. Now we are reconciling. Can we stop the legal separation proceedings?
Yes. If you decide that you want to give your marriage another try, you or your legal separation attorney can file to have your petition for legal separation dismissed. You may do this at any stage of the legal separation proceedings. Since you are still legally married after you are legally separated, you can reconcile with your spouse without much additional work. However, if you file for a dismissal of your legal separation case, and later decide that you want to be legally separated, or divorced, you must start the process from the beginning.
2) Is legal separation required before a divorce decree can be granted?
No. In California, you can file for either a legal separation or a divorce without any pre-requisite filings. If you file for a legal separation, and later decide that you want to divorce your spouse, you would have to file an amended petition, to change your petition to a request for divorce. Both legal separation and divorces are very complex matters. You should hire an experienced divorce attorney to assist you in your divorce or legal separation matter, so that your rights are protected.
3) If my spouse and I have not lived together for several years, do we still have to file a request for legal separation or divorce to resolve the issues of our case?
Yes. While certain issues of a future divorce or legal separation may be affected by your physical separation, you would still have to file a request for legal separation or divorce with a family law court to resolve the issues of your separation. Without filing a legal separation or divorce case with a family law court, issues such as child custody and visitation, child support, spousal support, and property division cannot be decided.
4) If a spouse dies after a legal separation, is the surviving spouse still qualified to receive the legal benefits of a marriage, such as inheritance and social security benefits?
Yes and no. If you are legally separated, you are still married. Thus, generally, you would be entitled to the same benefits as if you had not filed for the legal separation. However, the extent of your benefits will depend on the legal separation agreement. If you and your spouse agreed to make certain property separate property, and make provisions in the event of your death(s), then the legal separation agreement could be binding on these issues.
5) What is the difference between the “date of separation” and a “Legal Separation?”
The term “date of separation” and legal separation are often incorrectly characterized as the same thing. The date of separation is simply a reference point for the court to determine how long the marriage lasted and to decide issues of property characterization. It has no bearing on the actual status of the spouses as married or not married.
Legal separation, however, is a formal court ordered status, and that formal status can only be brought about by a Judgment of Legal Separation. It is not related to the date of separation in any real sense. It is simply the order of the court that the State of California views the spouses as officially separated, and has made all other orders in the case in accord with that order. Just like a divorce case, a legal separation will include appropriate property orders, child custody orders, child and spousal support orders, attorney’s fees orders, and any other orders necessary to resolve the spouses’ various disputes in the marriage.
But unlike divorce, after a legal separation, the former spouses cannot remarry. They are not divorced in the eyes of the State. Further, if one spouse files a Petition for Legal Separation, the other spouse is entitled to respond with a Response and Request for Dissolution of Marriage, in which case the court will proceed as if the case is a divorce and not a legal separation. Both parties must agree that the matter will proceed as a legal separation.
Contact an Experienced Attorney at Wallin & Klarich If You Are Seeking Legal Separation
If you are unsure whether you should file for a divorce or a legal separation, you need the help of an experienced family law attorney from Wallin & Klarich. At Wallin & Klarich, our family law attorneys have over 30 years of experience successfully helping clients in their legal separation cases, as well as many other family law matters. We have the skill and experience to help you with every aspect of your California legal separation case. Our attorneys are available 24 hours a day, 7 days a week, and 365 days a year to answer any questions you have regarding your case.
With offices located in Los Angeles, Orange County, Riverside, San Bernardino, San Diego, Victorville, West Covina, Sherman Oaks, Torrance, and Ventura, there is a Wallin & Klarich family law attorney available wherever you happen to live.
Call us today at (888) 749-7428. We will get through this together.