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Legal Separation

If you are already physically separated from your spouse due to a marital breakdown, or if you are contemplating divorce but aren't sure if that's the path you want to take, you may want to educate yourself on the basics of legal separation under California law.

At San Diego Divorce Attorney, we have extensive experience in handling both divorce and legal separation cases in San Diego and throughout Southern California. We understand the multiplicity of sometimes complex issues that are involved and how best to resolve them in a way that is legally sound and fair and equitable.

To learn more or for a free legal consultation and quick attention to your case, do not hesitate to contact us today by calling 858-529-5150.

What Is a "Legal Separation" in California?

California law provides a number of ways to deal with a marital situation that you believe has broken down and may be beyond repair. Divorce is the most common option that people resort to, and divorce brings the marriage to an end - "dissolves" it, legally, and cancels all other legal standings that were based upon the existence of the marriage.

In some few cases, when a marriage is found to not have been legally valid to begin with (or for a number of other reasons that apply in a very limited percentage of cases), annulment may be legally possible. 

But when you aren't sure you want to end a marriage but cannot bring yourself to live with your spouse for the foreseeable future, legal separation is often resorted to.

A legal separation does not end the marriage, and it can be cancelled at a later date with the consent of both spouses, if you go through the process to do that. But a legal separation does create a legally recognized separated status and can (through the dictates of a mutually agreed upon separation agreement) provide much of the same kind of "relief" that a court would typically order following a divorce.

There are a number of reasons to choose legal separation instead of divorce, including:

  • You aren't yet sure if you want to end the marriage.
  • You don't yet meet the residency requirements (6 months in-state and 3 months in-county) to file a divorce.
  • You don't believe in divorce for religious reasons.
  • You want something done legally immediately rather than waiting 6 months for the divorce to be finalized - and you don't qualify for summary dissolution divorce.

At San Diego Divorce Attorney, we don't just deal with divorce cases. We also have extensive expertise in handling legal separations and the full gamut of other family law practice areas. We can answer all of your questions about divorce versus legal separation and put you in the position to make a fully informed decision.

Legal Separation vs. Date of Separation

In the context of a divorce or other family law matter, the terms "legal separation" and "date of separation" are likely to come up. But don't be confused - they do not refer at all to the same thing. And it's important to understand the difference here.

The date of separation has legal status but does not create a legal separation. The date of separation is the day on which one spouse decided to end the marriage (or seek a legal separation) and made that intention clear to the other spouse.

Most commonly, "moving out" is the sign that courts use to determine date of separation. But it can also occur when a physical separation occurs within the same home or if the two spouses were already living apart for a time when the decision was made to separate.

Date of separation is important because when property division is determined in a divorce (or in a separation agreement for a legal separation), property owned before the marriage and after the date of separation will be "separate property" while all other property (except gifts and inheritances) will be "marital property," which is also referred to as "community property."

The date of separation will affect how much property goes to each party in the event of a divorce; and, it may be used as a reference point if property is divided in a legal separation as well.

Legal Separation vs. Divorce

We can go into more detail now on the differences between a legal separation and a divorce - and on why you might opt for one as opposed to the other.

Remember that the basic difference between divorce and legal separation is that divorce ends the marriage, while legal separation does not. And there are a number of other differences that flow from that fact.

First, you cannot (obviously) remarry while merely legally separated - and neither can your spouse.

Second, you can file for legal separation anywhere in California at any time without any residency requirements. That's just not true with divorce.

Third, a legal separation can be approved and immediately implemented, but a divorce can't be.

Fourth, both spouses must mutually agree to get a legal separation or it simply cannot be done. By contrast, a divorce can be approved in spite of the other spouse's objections or even refusal to take part in the process.

Fifth, there are tax issues, pension plan and health insurance issues, and sometimes, military benefits issues that depend on how long your marriage lasted and on whether or not it is dissolved or you simply have a legal separation.

Sixth, you can later convert a legal separation into a divorce. It saves time and paperwork when the divorce is filed if you are just converting from a legal separation versus "from scratch."

Seventh, you still have to file the same basic kind of paperwork for a legal separation. And you need to come up with a separation agreement that a judge will sign. But note that your spouse has to agree to give spousal support (alimony) voluntarily if you get it in a legal separation - but in a divorce, the court would be able to impose alimony.

The Separation Agreement

Although a divorce decree and a legal separation decree differ in many ways, yet, they both typically deal with all of the same issues. A separation agreement must be worked out and agreed to by both spouses, presented to a judge handling the case, approved, and converted into an "order" that then has legally binding status.

No one can force your spouse to agree to a legal separation or to agree to anything contained in a separation agreement.

You two can, in theory, draw up your own agreement over the kitchen table on your own if you desire. However, that's seldom practical, for the following reasons:

  • Already being at odds with your spouse, one-on-one solo discussions with him/her on tense and involved financial and child custody matters could prove emotionally explosive.
  • There are so many important and detailed matters that go into a separation agreement that without the aid of an experienced family law lawyer, you may be at a loss to know how to even begin formulating the agreement.
  • You may feel intimidated by your spouse. He/she may make unreasonable demands, and you would need a skilled negotiator on your side in such a case.
  • Unless the separation agreement meets certain criteria and falls within parameters the presiding judge finds "reasonable and equitable," it won't be accepted and you'll have to start all over again.

But you may still be wondering, "What goes into a separation agreement? What are its typical elements?" Here is an answer to that question:

  1. Often, the manner in which marital property is to be divided will be stipulated.
  2. How property and debts accumulated after the date of separation will be handled will be specified.
  3. Some form of spousal support may be included in the agreement.
  4. Child support, child custody, and visitation rights will be addressed if there are minor children from the marriage involved.
  5. Who will pay bills, like mortgages, rent, utilities, insurance payments, healthcare expenses, car payments, and more is often addressed.
  6. The agreement may mention who will manage bank accounts and investments that are marital property.
  7. It's possible the separation agreement may last for a specified period of time.

The Legal Separation Process

If you are considering getting a legal separation in San Diego or Southern California, you should be aware of the basic process involved. Here are seven steps of the process:

  1. Be ready to state what are the grounds of the legal separation. In California, both divorce and legal separation can be filed for "irreconcilable differences or incurable insanity."
  2. Go to the local county Superior Court and get Form FL100. You could also download and print it out. The same form is used for divorce and legal separation - you just check a different box.
  3. Fill out the form, which will involve providing some information on property and any children involved. You can ask for child custody and child support. File the form at a county Superior Court.
  4. Also fill out Form FL105 and/or GC120 if you have minor children. The information you provide will be relevant to child custody, visitation, and support issues later on.
  5. Ask for a family law facilitator provided by the court to review your forms to ensure they're correct and complete. We can review the forms for you as well.
  6. Pay the relevant filing fee(s). You can apply for a fee waiver if you have a financial hardship, low income, or currently already get public benefits.
  7. Have your spouse served with a copy of the papers you filed with the court, either in-person or by mail. We can get a process server to handle this in-person rather than you doing it yourself if you wish. Your spouse must respond as in a divorce paper service, but remember that legal separations have to voluntary for both parties.

The process of filing for a legal separation and of getting a valid separation agreement can be quite complex. We at San Diego Divorce Attorney can handle the entire process and guide you through it without any glitches. We are familiar with every step and every nuance involved in the process, and we can prevent unnecessary complications and delays.

Why Choose San Diego Divorce Attorney to Handle Your Legal Separation?

There is no shortage of divorce, legal separation, and family law attorneys in San Diego and Southern California - and we at San Diego Divorce Attorney never take you for granted. We have worked hard for many years to gain the exceptional level of family law expertise we possess, and we offer you truly top-tier assistance at an affordable, competitive price.

We are also intricately familiar with local courtroom processes throughout the area, and this gives us the ability to do everything faster and smoother than most of our competition can manage.

And beyond our deeper level of expertise, we also stand out from the crowd for the level of personalized, customized attention we give to each client's case. We treat you with respect and professionalism. We never pressure you to make any decision but always equip you with the legal facts and likely future realities that relate to the different options that lie before you.

We can guide you through every step of the process of getting a legal separation and ensure that your separation agreement will be fair, equitable, and both acceptable to and enforceable by, the court.

Contact Us Today for Assistance

At San Diego Divorce Attorney, we have the deep legal knowledge and experience needed to handle your legal separation, divorce, or other family law case from beginning to end.

We know how to handle negotiations with your spouse and his/her lawyer, draw up a suitable separation agreement that will be acceptable to the court, and walk you through every other aspect of the legal separation process.

We can put all the relevant information before you, explain to you how a legal separation would likely impact you financially and in other ways, and help you make an informed decision.

To learn more or for a free, no-obligation consultation, contact San Diego Divorce Attorney today by calling 858-529-5150.


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