Legal Separation
A California divorce (when divorces in California became “no-fault” they were thereafter referred to as “marital dissolutions”), is one way to end a marriage. Some couples decide not to proceed with a California divorce but rather proceed with what is known as a separation. Many reasons cause for a couple to separate rather than dissolve their marriage including maintaining one of the spouses as a dependent on the other spouse’s health insurance plan or the religion of one or both spouses frown on dissolving a marriage. Additionally there may be benefits of remaining married when filing income tax returns or obtaining scholarships, etc.
Spouses do not have to actually file documents with court to have what is known as a legal California separation. All that is needed for a California legal separation is for one spouse to have an intent to permanently sever the marital relationship. That spouse’s intent—which is subjective--is measured by his or her objective conduct or actions. So if that spouse, i.e the one who is claiming he or she has the intent to permanently sever the marital relationship, should act contrary to that intent, such as dating his or her spouse, going on vacations with his or her spouse, attending marriage counseling or other conduct that would be contrary to an intent to permanently sever the marriage, then the other spouse may be able to prove that there was in fact no legal separation. Legal separation and the date it actually occurred is very important for purposes of valuing and characterizing marital (community) property and separate property.
Generally, all property and income acquired after date of separation is the separate property of the spouse acquiring same. Nathan James of SEIFER, MURKEN, DESPINA, JAMES and TEICHMAN, ALC, offers his California divorce and separation clients experienced legal counsel for assistance with all aspects of a legal separation.
A California legal separation action is in fact an alternative to a California marital dissolution action and can be adversarial and involve the same issues raised in a California divorce. That is, a California legal separation, when pursued through the court, requires judicially approved division of marital assets and the resolution of issues pertaining to child custody, visitation and timeshare, child support and spousal support.
Nathan James and SEIFER, MURKEN, DESPINA, JAMES and TEICHMAN, ALC, believe it is important to secure an experienced California divorce lawyer so as to make sure your concerns are adequately addressed and your legal rights protected as you progress through a legal separation. We believe it is important to analyze the unique and particular demands of each client’s California divorce or separation and endeavor to obtain a fair and equitable outcome for our clients, be it through litigation or negotiation and settlement.
When the court enters a final judgment of legal separation, there is no longer an obligation by either party to comply with specific rules and laws mandating certain marital rights and obligations. Once a Petition for Legal Separation is filed and served on the other party, all of the disclosure requirements required in a California divorce are required in a California legal separation. In a California legal separation, a judgment of separation may contain a division of community property, community debt and that there is no further accumulation of future community property or debt. Spousal support does not typically occur in a California legal separation unless the parties agree to it or a court orders it. Please note: LEGALLY SEPARATED SPOUSES CANNOT REMARRY. Certain benefits of marriage may be retained because the parties technically remain married in the eyes of the law. Under California divorce law, in order to obtain a divorce, one party must be a resident of the State of California for six months and a resident of the county in which the Petition for Dissolution is filed for three months immediately preceding the filing of said Petition. Further, there is a six-month waiting period, between the date the Petition for Dissolution is filed and the date a court may enter a Judgment of Dissolution. These are known as residency and waiting period jurisdictional requirements. When filing a Petition for Separation there are no legal residency or waiting period requirements. Couples who do not meet the residency or jurisdictional requirements for filing a California divorce can file for a California legal separation and, upon satisfying the residency requirements, may modify the Petition for
Separation into an action for dissolution. If you have filed a Petition for Separation, and thereafter decide you want to dissolve your marriage by filing a Petition for Dissolution, whether or not you have received a final judgment of separation, our firm will provide you with legal counsel and file the appropriate documents necessary to modify your request for a legal separation and obtain a dissolution of marriage for
you.
Nathan James and SEIFER, MURKEN, DESPINA, JAMES and TEICHMAN, ALC will apply diligence and care to your California legal separation case. We will make sure that the court has jurisdiction over your California legal separation, prepare and file all necessary legal documents, work to gather all of the evidence and documents necessary so that a comprehensive picture of your marital estate is obtained, and work to either litigate or settle community property and debt division, child support, child custody, and support issues as are appropriate to the issues of your case. We make sure you understand the advantages and disadvantages associated with a legal separation so you can make decisions that are best for you and your family.