Under some circumstances, couples have a difficult time deciding if divorce is right for them, or if it is even something that they really want. Sometimes, couples want time to test the waters and truly determine whether divorce is a path that they should choose. In other situations, couples know they no longer want to be together, but for religious or other reasons, such as maintenance of health insurance plans, do not want a divorce.
If this is the case, a good alternative is a legal separation. In a legal separation, the parties will receive a Judgment from the court that determines property division, support and even child custody. The process is the same as with a divorce, meaning that in the simplest of cases, one party will file a petition for dissolution and the other spouse should file a response to the dissolution. The parties will then exchange financial disclosures and if they have reached agreements in all aspects of their case, a Stipulated Judgment of Separation will be drafted, signed and processed with the court. This is the same process as in a divorce except that when the case is finalized, the couple will still be legally married. Sometimes this is the goal of the parties, but it can also be a deterrent. Parties need to keep in mind that this means that they cannot remarry until they are actually divorced. Being legally separated does not give you the right to be remarried as you will not be considered a single person.
Many individuals believe that because they obtain a legal separation it is only temporary, and while it is true in that you can amend a legal separation to a dissolution at any time, the agreements you reach during a legal separation are often maintained in the divorce as well. Therefore, what you agree to during a legal separation may be the same that remain in place following your divorce.
Like divorce, legal separation ends each spouse’s community property rights for income and property received or acquired after the date of separation. Likewise, each party will be responsible for their own debt accrued after the date of separation. Therefore, legal separation may be a very practical alternative while parties are determining whether they want to remain in the marriage and gives them the opportunity to experience what a divorce truly entails.
One aspect of legal separation that is important to be aware of is that there are no residency requirements. When filing for divorce in California, one of the spouses must have been a resident in California for at least six months prior to filing for divorce and in the county they are filing in for at least three months prior to filing. These requirements are not necessary when filing for legal separation. Therefore, many individuals who cannot meet the divorce residency requirements will file for legal separation and then amend the action once they meet the appropriate residency criteria. This is often the case when one party has recently moved to California. Additionally, the six month “cooling off period” is not required in the case of legal separation, therefore unlike divorce, a legal separation takes effect immediately after it is ordered.
At Argyris Mah, LLP, we can help you determine whether a legal separation would be a good option for you given your particular circumstances.