A couple can sometimes decide to end their marriage, but they are not ready to divorce. For instance, some couples don't file for divorce because of social or religious reasons. In this kind of situation, they could file for a separation instead. Whereas legal separation is one step away from divorce, it isn't a complete dissolution of the marriage. In other words, legally separated partners can’t remarry before they divorce.
Although separation isn't divorce, it's just as stressful. Not only is it about physically separating from your spouse, but it also entails how to address child visitation and custody rights, division of property, payment of bills, and managing complex emotions. Separation also plays a critical role in the final divorce case since the date of separation is significant on financial matters. Most people don't know how to tackle legal separation, whose process is more or less like divorce. This blog gives you a general guide for the California separation process, including what you should or shouldn't do while undergoing this legal process.
Preparing for Separation
Both physical and legal separation usually don't unexpectedly happen. Couples who face challenges in their relationship and eventually accumulate irreconcilable differences may wish to separate and live apart. Irreconcilable differences build up over time, and this is a critical period when it comes to separation since it's at this point that spouses make many mistakes.
This Is What You Should and Shouldn't Do When Children Are Involved
A child's best interests is a subject you'll hear so many times during legal separation, child custody, and divorce cases. In case your wife or husband does not have the children's best interests at heart or aims to use them as leverage, you need to be careful on how you'll handle the entire process of separation.
If you're the children's father and are worried your wife intends to prevent you from seeing your children if you leave the house, you might want to suspend moving out. You'll need to balance this with whether your wife is capable of manufacturing false proof to accuse you of domestic violence wrongly.
If you're the mother and your husband is abusive, yet you depend on him financially, you'll have to ask yourself various questions like where you'll go if you leave the house, how you'll pay for you and your children's needs before there's an alimony or child support order.
When considering separation, remember:
Do not take the safety of you and your children lightly. If your wife/husband was abusive towards you during the marriage, particularly if the abuse was recent and physical, allowing them to visit the children might place you and the children in danger. If you aren't sure of what you should do, consult with a lawyer.
Be careful if your partner is someone capable of making false child abuse or domestic violence accusations against you. Domestic violence allegations are usually based on 'he/she did or said' statements, and these accusations can significantly affect a child visitation or custody case. Therefore, try not to be alone with your partner. Leaving the house and filing for separation or divorce right away could be the ideal option. You should know your rights as a mother or father if you're filing for separation. Expert legal advice is also critical, and that's why you have to consult with a divorce attorney concerning your specific situation. Your lawyer may help you schedule a court date for child visitation and custody orders as soon as possible.
You and your partner can agree in writing on how to divide your time with your children. Ensure the time includes things like transportation, drop off and pick up, and specific days and times for each of you to spend with the minors.
If you don’t become the children's primary caretaker, pay more attention to unclear visitation terms and those that require you to depend on your partner to visit the children. These kinds of terms present an avenue for your spouse to use the children as leverage when you argue.
You should be aware the agreement you make with your spouse might just be what the judge will temporarily order or close to what they'll order later unless there's a good reason to direct otherwise or the agreement was only a transition period to more time for either of you. For instance, if you had agreed to visit the children at a specific time due to their very tender ages, that agreement does not bind you forever.
Handling Finances When Living Separately
Even if you've separated, you still need to pay the mortgage, take care of the children's expenses, pay for groceries and utilities, and do many other things that involve spending money. So how do you go about it? Do you divide bank accounts? In short, both of you have to figure out how to maintain two homes living separately.
Couples stress about finances during separation and for valid reasons. However, it need not be unmanageable. Help from a skilled family law lawyer can help you reach an agreement on managing your finances.
Do you both earn income, or is it just one of you? This question makes a significant difference. If your family has depended on income from one working parent, a legal separation may put an immense financial strain on both you and the working partner. If you're capable of having cooperative communication with your spouse, you have a higher chance of resolving your financial problems when you've legally separated. Things you should consider are:
- Whether you should divide your bank accounts 50/50 —this kind of agreement is a good idea if you both also agree on some sort of informal support until you've formally legally separated.
- What informal support arrangement should be like, if there’s any— if your spouse earns much more than you or vice versa is true, informal support might be necessary. However, the informal support arrangement has to be clear. It should be clear whether the spouse providing support will only pay the bills or provide direct support. You should also agree whether the support payment will be made monthly or only when needed. You want to work out these issues before your separation is finalized.
- Find out if there's any harm in absconding with or hiding property— if your case involves large amounts of money, money that's overseas or in hidden bank accounts, or one of you controls all the cash, waiting until you separate before you file for legal separation might not be ideal. You may require the protection of the Family Code, particularly if your partner intends to or has breached their fiduciary obligation to you.
Whatever step you take, it generally isn't wise to settle your financial issues and enter into a support agreement without help from an attorney. Whether the estate is small or midsize, support agreement, property division, or even debt payment usually requires a lawyer's review. Do not assume you know and understand the law, and don't try applying the law by yourself. Even if you don't hire your own attorneys, a mediation lawyer may come in and help you reach an agreement that's consistent with the Family Code.
Form a Separation Agreement Out of Court, If You Can
A separation agreement differs from the process of becoming separated. If you've decided separation is the way, you could enter into this kind of agreement with your spouse. A separation agreement is a legally binding contract that addresses all the aspects of your separation, including child support, visitation, custody issues, alimony, and property division. The agreement will allow you to sort out critical issues that will arise during your separation period, such as:
- Where your children will reside
- When and how either of you will spend your time with the children
- How you'll pay your living expenses like mortgage or rent payment, taxes, groceries, health care expenses, and utilities when separated
- How you'll manage your assets (for instance, investments or bank accounts) when you're separated
- Whether either of you will pay alimony and child support during separation
- Whether you'll sell or divide any property when you're separated
- How you'll treat assets and income acquired post-separation (usually, the court considers post-separation property or income separate property that belongs to the spouse who obtains or earns it. However, you might want to ensure the provision is in writing so there is no confusion or simply agree to treat the property differently.
Unlike legal separation, you do not have to go to court to enter into a separation agreement with your wife/husband. In line with this, we always recommend that you first try forming your separation agreement out of court.
Before forming your separation agreement, you may try finding a compromise on your own, perhaps with the help of a mediator. Doing this will help you pinpoint disputable issues, like the division of debts and disposition of assets. Additionally, this approach will give you control over how you divide your assets. But if you can't reach an agreement with your partner on these issues, that's when you can go to court for the judge to decide for you.
You May Need to Hire a Lawyer
A separation agreement is the outcome of negotiations between a married couple, which can take place in the mediator's office, at the dining table, or through lawyers representing both sides.
Couples may be capable of resolving some simple issues directly without legal assistance, for instance, where a couple has few debts, no children, and minimal property. However, negotiating and creating a detailed agreement that'll be compelling before a judge is difficult for most couples. Since the decisions arrived at during separation may have severe consequences, you want to hire a lawyer to protect your legal rights and create a valid separation agreement.
Additionally, communicating with a person from whom you are separating could be challenging. If you plan to separate, it means that the communication between you hasn't been communicating very effectively, and it's unlikely that the communication will improve now. Even though some couples remain friendly and agree on matters easily, most partners in the process of separating cannot expect to go far in in-person discussions before emotions build up and obstruct any efforts to resolve the problem between them. Most spouses require experts that can act as a go-between and negotiate with the other party.
What Does It Mean to Be Legally Separated?
Legal separation is like divorce, only that you remain married to your spouse. This means if you've separated from your spouse, you won't be able to remarry since you haven't officially terminated your marital union. Other than that, the legal separation involves a similar petition filing and response procedure. First, you kick off the legal separation process by completing some standard forms. You must also declare what property you and your partner own and any debts you accumulated during your marriage. Then if you have children, you'll need to complete more paperwork to help address child custody and resolve child support issues. After completing these forms, you'll need to file them in court, pay the required fee, prepare a summons, and then serve your spouse with copies of all the paperwork. The summons notifies your partner that you've initiated a case seeking a legal separation. It also states the repercussions if they don't respond within thirty days.
Legal separation also entails the same procedure of dividing property, debts, resolving support and custody issues, and the same compulsory disclosures as divorce. If you and your spouse can't reach an agreement, legal separation also involves a similar contested hearing procedure as divorce, where the judge is the one to make the ultimate decision.
Note that there's a difference between legal and physical separation. A physical separation merely means you and your spouse don't live together anymore. Married couples may physically separate for several reasons. They could live separate and apart for several months, years, or even decades without filing any paperwork in court. That doesn't mean they ever became legally separated. Regardless of how long it lasts, physical separation doesn't one day unexpectedly become legal separation. To be legally separated, you have to file paperwork in court.
Responding to a Summons for Legal Separation
If you've been served a summons notifying you that your partner has filed for separation, you have one of two options. Firstly, you could pay no attention to the summons and ignore it, or secondly, you could respond to it by filing your response to your partner's petition. Note that the legal separation process doesn't require your consent to proceed. Therefore, the court might continue with the process even if you choose to ignore the summons. In this kind of situation, the judge might simply make a default judgment granting the separation if you don't have a separation agreement with your partner in place.
Why Not Just Divorce Instead of Legally Separating?
As we mentioned earlier, most couples choose legal separation over divorce due to deeply personal or religious reasons. It could be that the religion they practice forbids divorce, or they have young children they need to take care of. A person may also choose legal separation to avoid the societal shame and stigma of being branded a divorcee. Others separate for practical purposes, like the desire to maintain one spouse on the other's health care plan (although if you are considering separation due to health care reasons, ensure the separation does not comprise a disqualifying incident under your plan).
Another common situation where legal separation is an option over a divorce is where one spouse does not meet the state's legal residency requirements. Separation also necessitates that both spouses consent to it. When it comes to divorce, not all parties must agree. If you want a divorce but your spouse doesn't, the court has to grant the divorce.
The grounds for filing for a legal separation in California are the same as divorce. They include incurable insanity and irreconcilable differences. However, unlike divorce, you don't need to meet the six-month residency requirement to file for separation, which is why some couples file for separation, as mentioned above.
Tips on the Don'ts During a Separation
The dilemma of legal separation is either a restored marriage or divorce. Your behavior during this period will determine the direction your relationship will take. The future of your marital union all lies in your hands. Thus, before making any wrong move, ensure both you and your spouse have the same goal towards the direction you want your marriage to head. So, do you want to have a fulfilling legal separation? This is what you shouldn't do:
- Don't enter into another romantic relationship immediately
- Don't seek legal separation without consent from your partner
- Do not rush into signing divorce papers
- Do not bad mouth your spouse in front of your children
- Never deny your partner the right to co-parenting
- Don't publicize your separation
Contact an San Diego Experienced Family Law Attorney Near Me
Going through the legal separation process without legal assistance isn't in your best interest. If you are going ahead with the process, you need a professional to guide you through it, give you legal advice, protect your legal rights, and help you avoid mistakes and make informed decisions. A family law attorney is the best person to do all this. At San Diego Divorce Attorney, we go a step further to answer any personal questions you may have and address your burning concerns in the best way possible. If drafting a separation agreement has become challenging, we'll help you make the best possible decision with your spouse. If you intend to file your legal separation petition in San Diego, CA, call us today at 858-529-5150 for a consultation.
