Marriages are not always blissful; they go through a series of conflicts which in most cases, can be solved with a little effort. Sometimes you and your spouse may have irreconcilable differences or circumstances that discourage you from pursuing the union further. There are some legal alternatives you can pursue including informal separation, legal separation, and divorce. The choice you make depends on your personal preferences, the status of the marriage, and the feelings of both of you. You may need the help of the San Diego Divorce Attorney Law Firm if you choose to go through with a legal separation. Below, we will discuss legal separation and how it could affect a divorce.
What Is Legal Separation
Legal separation is one of the alternatives or a precedent to divorce. A legal separation is a legal process in which a married couple obtains a court order to formalize a separation without ending the marriage. You can go for legal separation as you work towards reconciling with your spouse or towards a divorce. Some spouses may opt for an informal separation where they take time from each other as they work towards reconciliation, legal separation or divorce.
An informal separation is where the parties cease living together without notifying the court of their decision. In an informal separation, the parties may fail to adhere to the separation agreement. Securing a legal separation protects the rights of both spouses and protects children from suffering due to the negligence of responsibility.
A legal separation includes the rights and responsibilities of the couple during the period they will be living apart. These rights and responsibilities revolve around the care of children, spousal support and visitation rights. Having a legal separation agreement helps in enforcing these rights and responsibilities.
A separation document is one which indicates the agreement between you and your spouse on the responsibilities each one has. The major issues covered in a separation agreement include child custody, visitation, child support, spousal support and the division of property. The agreement must indicate in detail how the property will be divided (both assets and debts), parenting roles, and issues such as health and life insurance.
Where you cannot agree, the court will initiate proceeding similar to those of a divorce to determine custody, the division of property, alimony and child support. While making the decision, the court will seek to pursue the best interests of the child.
It is both a cheaper and easier process where both parties come up with the separation agreement. Both spouses should be included in the drafting of the agreement. You can hire the help of a divorce attorney to help you come up with a separation agreement that meets the basic legal requirements.
A legal separation in which both parties are in agreement is often less stressful both to the spouses and the children as the process is finalized speedily.
Reasons for a Legal Separation
A legal separation is a process that puts your marriage on hold as you work out your differences. In some cases, time away from your spouse will give you the time to reflect on your marriage and what you want for yourself. Here’s why you may want to go for a legal separation
- Uncertainty: if you or your partner are not sure whether to end the marriage or not, legal separation is the ideal choice. When a relationship is experiencing challenges, it is easy to feel that quitting is the only way out. However, leaving your present circumstances for a while gives both of your time to reconsider your actions, develop new perspectives, forgiveness, and understanding of each other and a recommitment to your spouse. Legal separation gives you a chance at reconciliation. After reconciling with your spouse, you can choose to remain legally separated or to live together again;
- Religion: in instances where divorce is against the religion or personal preference of one or both parties, a legal separation is the best alternative. The separation allows you to remain married to your spouse without living together with him or her;
- Health insurance: legal separation ensures that both parties benefit from medical coverage from the other spouse's job. In the case of a divorce, you and your spouse become single again and have to cater to your health insurance;
- Tax benefits: since you maintain your marital status, you can file taxes together which allows you to enjoy benefits such as tax relief;
- Other benefits: in California Law, when a marriage lasts for ten or more years, you are automatically entitled to the social security, pension and military benefits of your spouse. Some couples opt for a legal separation so they can attain ten years and become eligible for these benefits;
- Residency requirements: you may opt for a legal separation where you do not meet the residency requirements for California and San Diego. In such a situation, the legal separation allows you to stay apart from your spouse while being legally protected;
- As the beginning of divorce: a couple can pursue a legal separation as they work towards a divorce. For instance, in California, one requires to wait six months before they are legally divorced; during this time, the couple can file for legal separation. Sometimes the couple would want to feel what it would be like to live separate lives without necessarily terminating their marriage.
What are the Differences Between a Legal Separation and a Divorce?
Legal separation and divorce seek to achieve the same result: keep the couple apart. Differences between divorce and legal separation are outlined below.
The major difference between the two is that a divorce permanently severs the marriage bond. In a legal separation, however, the marital status of the couple remains, which means that a separated couple can resume living together after they choose to end the legal separation.
A legally separated couple cannot marry other individuals. California recognizes one spouse per person. Therefore, it would be illegal to marry another person while legally separated.
Legal separation is a good idea for couples that still want to enjoy the financial benefits of marriage. A legal separation is a more financially friendly alternative to divorce as the couple can still file taxes together and share health insurance. In some cases, the couple will be entitled to benefits such as pension and military benefits of their spouse. In the case of a divorce, the partners will be required to lead separate financial lives. However, child support and alimony may be required. Divorcees are not entitled to the pension, military or social security benefits of their spouse unless their marriage was at least ten years old.
The financial benefits of a legal separation come with its burdens as well. A legally separated couple can still have shared responsibility for the debts acquired when they were living together, and in some cases, even when separated.
Since a legal separation does not end the marriage, your spouse is still considered your next of kin and can, therefore, make important decisions including financial and medical ones. They are also entitled to inheriting your property in case of death.
Legal separation are costly procedures; therefore, in most cases, it makes no financial sense to apply for legal separation then divorce. Since California is a no-fault state, couples need only to cite irreconcilable differences or incurable insanity to file for divorce. Where a couple still pursues legal separation with the intention of getting a divorce, the process becomes very expensive in the long run. The cost is high because they will have to pay court filing fees for both the legal separation and the divorce yet the paperwork is almost the same.
How Long Should a Legal Separation Last?
A legal separation could be a permanent or temporary thing. Some couples choose to separate from their spouses throughout their lives. They may enter into other romantic relationships, but they never remarry. In some cases, spouses may opt for legal separation to avoid remarrying.
The parties to a legal separation determine how long they want the legal separation to last. It can end due to either divorce or reconciliation. Where it ends in reconciliation, the couple should submit a request to resume the marriage from the court that authorized the legal separation.
The Effect of Legal Separation On Divorce
Legal separation can stop a divorce from happening. With the distance between them, the separating couple has an opportunity to reassess their marriage, desires, and expectations objectively. During the separation period, they get to understand their actions better and may eventually reconcile and resume living together.
A legal separation does not quicken the divorce process as California is a no-fault state. The no-fault provision means that the petitioner need not prove the grounds for divorce such as adultery. Therefore, if you were considering a legal separation to quicken the divorce, then filing directly for the divorce would be the best option.
Divorce After a Legal Separation
You can file for a divorce after a legal separation. Filing for a divorce can happen at any time during or after the legal separation proceedings. Most separated couples often divorce within three years of a legal separation. You may file for a divorce because:
- You have met the residency requirements
- You would like to remarry
- You cannot reconcile with your spouse
If the proceedings for your legal separation are yet to begin, you can file for an amended petition. The amended petition is applicable for couples who meet the residency requirements for divorce. The California Family Code requires that one of the spouses must be a resident for 6 months in the state of California and three months in the county in which they are filing for divorce. Once you sign the petition, you have to serve it to your spouse who should respond to the petition.
If the legal separations proceedings were complete, you have to start the process for filing for a divorce again. You will need to file for a petition for the dissolution of marriage at the superior court in San Diego. You have to wait for at least six months after a legal separation to file for a divorce.
What Leads to Divorce After a Legal Separation?
About 14% of the legal separation cases end in divorce. Many factors influence a legally separated couple leading them into divorce. As mentioned before, a legal separation gives the couple time on their own where each one can examine themselves and their role in the marriage, their feelings towards their partners and what they want for their future. In this process, they may either decide that marriage to their partner is an essential part of their journey or not. Here are some of the reasons why couples divorce after a legal separation:
Rediscovery
Marriage calls for compromise and sacrifice from both partners. When each partner mutually compromises and sacrifices their wants and desires for the benefit of their spouse, then a healthy relationship will develop. However, when this is one-sided, resentment, self-esteem issues, and anger may develop. The partner who is always compromising will feel depleted and run out of energy to keep going. Such feelings lead to constant conflicts, lack of communication and in some cases, abuse.
Such a couple may decide to separate for a while as they try to resolve these issues. During this time, one or both parties may rediscover lost talents, hobbies, and interests. They may regain their self-esteem and self-worth that could have been lost during the time they lived together.
During this time of self-exploration, they may deal with fears they had such as the fear of being alone. The transformation may lead them to become new people with new goals, confidence, and aspirations. They may decide to permanently severe their marriage bonds to pursue their new interests.
Resentment
Not all partners cope well with separation. One or both parties may develop resentment and anger over what happened in the marriage and even during the separation, which may be true for spouses who had controlling or abusive tendencies towards their spouse. For some, resentment may arise from feelings of loneliness, being used, unmet expectations and failure. The resentful spouse may petition for divorce regardless of whether they intended to resume the union. Sometimes, the spouse to whom the resentment is directed may file for the divorce to avoid the negative energy from their partner.
Depression and Incurable Mental Illness
During or even before the separation period, a spouse may develop depression or incurable mental illness. Such mental illness may affect their daily activities, relationship with others and their responsibilities towards their spouses. The unaffected spouse may choose to divorce the depressed or mentally ill spouse to proceed with their life. The spouse may help their partner in securing treatment or rehabilitative care.
Unresolved Issues
The separation period provides a chance for couples to reevaluate the issues in their marriage. Under normal circumstances, they can find solutions to their problems wither on their own or with the help of a counselor or therapist. During the dispute resolution phase, they can understand each other’s reactions, needs, and perspectives which leads to reconciliation. However, if they cannot resolve their differences, they may opt for divorce.
Desire to Remarry
While legally separated, the spouse(s) may meet new romantic interests with whom they desire to form a permanent union. Remarrying when merely separated is considered as bigamy in San Diego. Therefore, you have to sever your marriage bonds before remarrying another person.
Unchanged Behavior
You may pursue legal separation to separate yourself from some destructive behavior in your spouse. These behaviors may include drug abuse, alcoholism, financial mismanagement, abuse, and criminal behavior. During the separation period, you may expect the spouse to correct or control their behaviors. However, if these behaviors do not change, then reconciling would restart the cycle of dissatisfaction, conflict or abuse. Divorcing such a partner will keep this wheel of marital problems from spinning and give you a chance to lead a productive life.
Incompatibility
Marriage is a journey that people approach differently. While there is no template for everyone to follow, it is much easier to walk the journey with someone with shared interests and perspectives. While their perspective may be right, your personalities could be incompatible, pitting you against each other often. Incompatibility will lead to dissatisfaction, constant negative criticism, and separation. Eventually, the parties may realize their incompatibility and choose to divorce.
Traumatic and Life Changing Events
Traumatic and life-changing events such as terror attacks, natural disasters, assault and witnessing traumatic events can affect the way married couples relate. Individuals may develop interests or conditions that keep them from enjoying their marriage to their spouse. They may go for legal separation as they try to figure things out and eventually divorce when they cannot proceed with the marriage.
Find A Divorce Attorney Near Me
Legal separation and divorce can be overwhelming and stressful experiences. Without the right legal aid, it could lead to a lot of frustration and depression. San Diego Divorce attorney is dedicated to guiding you through this stormy time. We will prepare the right documents for you and provide you with the relevant legal advice. Call our San Diego Divorce Lawyer today at 858-529-5150 to speak to our family law attorneys.
