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Legal Separation

Most people get the terms, legal separation and divorce mixed up. The fact of the matter is that the two terms have completely different meanings, especially when used in the legal world. You may have separated from your significant other but not necessarily divorced. In the event that you find yourself in court over legal separation or family disputes, you will need the aid of an experienced family lawyer. The Los Angeles Divorce Lawyer is a renowned law firm, focusing on family matters and operating in the Los Angeles area. We are undoubtedly among the top-rated law firms in California and your best chance of getting your fair share in a legal separation.

What is Considered Legal Separation in California?

In case your marriage goes stale or suffers irreparable damage, the state of California provides a number of ways in which you could deal with it. One of those ways is by divorce, which apparently is the most preferred method that the majority of the couple's resort to. In California, the major difference between divorce and legal separation is that divorce entails legally putting an end to your marriage. In other words, divorce is the process of dissolving your marriage, which according to the law cancels any other legal standings that were hinged upon the presence of your marriage. There have been a few incidents in California where some marriages were found not valid legally from the start, making them easy to nullify.

Legal separation, on the other hand, is defined as a court-mandated separation that could be applicable in place of a divorce without necessarily having to end your marriage. A legal separation will usually involve an official resolution to matters pertaining to child support, custody and visitation. It will also entail division of marital possessions. It is important to note that possessions and debts of any kind that either of the spouses amasses after separating will not be deemed as shared.

Even though a divorce and legal separation share some characteristics, it should be noted that the place of residence, be it within California or a different state, is not a requirement in the event of a legal separation. A legal separation makes it illegal for you to get into another domestic partnership or even remarry. In addition, a legal separation will not put an end to your marriage and it can be annulled later on, with permission from both you and your spouse.

There are several reasons that a couple in California could choose legal separation as opposed to divorce. They include:

  • To allow for you and your spouse to decide whether to end your marriage or not.

  • To give you time to sort out the California residency specifications for the application of a divorce.

  • Your morals or religious beliefs that do not tolerate a divorce.

  • You want to keep insurance and other benefits.

What is the Difference Between Legal Separation and Date of Separation in California?

As similar as the two terms may seem and sound, they do not mean the same thing. It is important that you understand the difference so as not to get confused especially in the context of family law.

In the state of California, the date of separation is recognized as the day that one spouse chose to seek a legal separation or terminate the marriage, making their intentions clear to the second spouse. This date is of importance to the court especially when it comes to property division. All the property accumulated during a marriage is considered marital or communal property. This excludes any inheritance and gifts. On the other hand, possessions accumulated before the marriage and after the date of separation are considered separate property.

In case you decide to go through with divorce, the date of separation will play a major role in determining the amount of property each party will receive. If you divided your property in a legal separation, the date of separation could again be used as the point of reference here.

What is the Difference Between Legal Separation and Divorce in California?

There are various reasons as to why some couples may opt for one over the other when it comes to divorce and legal separation. The major difference as seen earlier is the fact that divorce puts an end to your marriage whereas legal separation merely creates a legally documented separated status. Other differences include:

  • It is possible for you to file for a legal separation wherever in California you choose, all without necessarily being a resident of the state. Divorce, on the other hand, will require different credentials and documentation.

  • For a legal separation to take place, both spouses need to jointly agree or it will not materialize. For divorce, even if one of the spouses refuses to participate in the process, the judge can still grant approval.

  • Another thing about legal separation is that it can be changed to divorce later on. This makes it easier to deal with in terms of saving time and less paperwork. Directly filing for divorce will take longer and is also a tedious process.

  • Getting married again is not an option for either of the couples under legal separation terms.

  • It is easier for a court to approve and instantly execute a legal separation as opposed to a divorce.

  • Some issues such as; health covers, pension plans, taxes among other benefits that you are entitled to will vary according to the period of time you were married. Some of them will go ahead and check whether yours is a case of legal separation or divorce.

  • Lastly, legal separation necessitates that your spouse provides alimony willingly unlike a divorce where the court can levy alimony with or without your consent.

How Do I File for Legal Separation in California?

Just like divorce, the process of legal separation has been known to be both costly and time-consuming. Such cases will usually involve a lot of paperwork and unseen expenses. It is, therefore, advisable that you try to resolve as many disputes as possible with your significant other before going to court for legal separation. If legal separation is your most viable way out, there are a few steps to follow when filing for it. They include:

  1. Decide on why you want a legal separation.

    In accordance with the California Family Code, section 2310; any legal separation should have its origin from either irreconcilable differences or incurable insanity. A California family court recognizes either of the two reasons as being the cause of a marriage breaking down beyond repair.

  2. Get a copy of the FL-100 Petition - Marriage form.

    This can be easily obtained by downloading a copy from the California courts website or at your resident county court. The form usually contains choices for both legal separation and divorce. You only need to check the box that applies to you.

  3. Fill out the FL-100 form.

    After completing the form, you are required to file it at your local county court. For legal separation, you will need to provide the appropriate information as specified on the paper. You are also required to provide information regarding little kids and property. In addition, this form allows you to make a formal request to the court to give orders regarding child custody.

  4. Fill out a second form, FL - 105/ GC - 120.

    This is only applicable if you have children aged 18 and younger. Included in this form is a statement under the Uniform Child Custody Jurisdiction and Enforcement Act. The information that you will provide on this form will help the court determine if it has authority over your child or not.

  5. You should then ask a family lawyer specialized in legal separation to review the forms.

    They will ensure that you have filled them out completely and as required. Alternatively, an online legal associate should be able to help you out.

  6. Make the necessary filing payment.

    The state of California usually charges four hundred and thirty-five ($435) dollars to file your form. In the event that you cannot raise the stipulated amount, you could apply for it to be waived. This goes for individuals with low income, facing financial hardships or those already getting unemployment benefits.

  7. Serve your significant other with a copy of the court documents.

    The law does not necessitate that you do the serving by yourself. It is, however, necessary that the individual serving the papers be aged eighteen (18) and over. They could be a relative, friend or a process server who will charge you for their services. Serving could be done either by hand or through the mail.

    If serving your spouse by hand, the server is expected to take the documents in person to the said spouse and provide evidence of service to the court. If you select the mail, the serving is finalized five (5) days after you mail the papers.

How Do I Respond to a Legal Separation in California?

If you are served with a court summon for a legal separation court case, it automatically makes you the respondent. It is important that you carefully study the papers you will receive. These papers will include:

    • Form FL-110, the Summons according to the California Family Law. This document highlights all the rights you are entitled to in relation to this case and the legal separation process. The document further highlights standard restraining orders applicable to you, how you can utilize your money, assets, properties or debts. In the event that you have kids, it prohibits your significant other from leaving the state of California with them and from changing their residency.

Form FL-100, the petition. These documents detail what the petitioner, your spouse, is demanding from the legal separation.

After carefully studying the documents, there are several options for you:

  1. Not taking any action.

    By deciding to do nothing, you will be granting your spouse whatever their petition will demand. This means that whatever verdict the judge will come to based on your possessions, child support and visitation will be what your spouse demands in their petition. Not more, not less. By not responding, the state of California views this as defaulting on the legal separation agreement. It is therefore called a true default. A situation of true default means that you renounce your right to take part in the case.

  2. Not taking any action due to the existence of a valid written agreement concerning your legal separation with your significant other.

    This notarized agreement will detail your agreement concerning your marital property, debts, spousal support, and child support and visitation in case you have children together. The California court considers this action as default too, since you do not file a response. You, however, still get to play a major role in the final result since the agreement with your spouse will be in written form. This makes your case default with an agreement.

  3. Filing your response with the court, but resolving with your spouse amicably at the same time.

    This means that you and your spouse are in good terms regarding your issues. It also means that you are in complete agreement with the term of your legal separation. The California courts regard such cases as uncontested.

  4. Filing your response with the court, where you disagree with your spouse’s demands.

    In case you opt for this, it means that you are not willing to meet your spouse’s demands and the court's intervention will be necessary when settling the matter. The court considers this a contested case.

    In the event that you choose to submit a response, the California statute grants you thirty (30) days to do so, from the date you were served with petitions and court summons.

The California Separation Agreement

When working on a separation agreement, you need to ensure that you are in complete agreement with your significant other. You then need to present the agreement to a judge who will then approve and change it to an order, giving it a legally imperative status. You and your spouse could decide on drafting a separation agreement according to your terms or you could choose to get a family lawyer to help you out.

It is however not advisable to do it by your own selves for a number of reasons. They include:

  • Your relationship with your spouse could create tension between the two of you. This could make face to face negotiations practically impossible especially when you include child custody and financial matters.

  • As easy as the procedure may sound, you will be shocked to learn that there are some vital and in-depth details that will require the involvement of a qualified legal personnel. You might find yourself on the short end of the stick if you are not careful.

  • In the event that your spouse makes irrational demands, legal counsel should be present for successful negotiations.

  • For your legal separation forms even to be considered, they need to meet certain conditions and fit within set limitations. They will otherwise be nullified forcing you to start afresh.

What Does a Typical California Separation Agreement Entail?

  1. Nine times out of ten, the division of the marital property is prioritized over everything else.

  2. The manner in which you will both handle the property as well as debts accumulated after your separation.

  3. A certain format of spousal support and how it will be handled.

  4. If your union involved children, the agreement will deal with child support, custody as well as visitation rights.

  5. The separation agreement also describes the partner who will see to all the expenses such as car payments, rent, insurance payments, the mortgage, healthcare expenses, schools fees among others.

  6. The partner to manage the marital properties, investments and bank accounts could be included as well.

  7. If the separation agreement is only going to last for a certain period, the dates will also be addressed in the agreement.

Frequently Asked Questions Regarding Legal Separation in California

  1. What is the point of legal separation if the marriage is still valid?

    Instead of just dissolving your marriage, you and your partner could decide on separating legally for a number of reasons. As explained earlier, it could be due to the religious beliefs of either partner, insurance benefits among others. Legal separation could have more benefits to a couple than a divorce would. At the end of it all, every couple has their reasons on what works best for them.

  2. What if I disagree with my spouse on getting a legal separation?

    In accordance to the California section 2345 of the Family Code, the verdict for legal separation for a couple is not to be passed prior to the accordance of both parties, unless one party decides against showing up with the petition for a legal separation. Both you and your spouse ought to reach an agreement on getting a legal separation.

Find a Los Angeles Divorce Lawyer Specializing in Legal Separation Near Me

Owing to the years of practice the Los Angeles Divorce Attorney has been in operation, we have acquired extensive experience and legal knowledge required to represent you in court successfully. Regardless of the nature of your family law case, you can count on us to give our all from start to finish. We will organize a sit-down with your spouse and their lawyer to draft a separation agreement that is suitable for everyone. For more information regarding legal separation or any other family law related case, call 310-695-5212 to speak with one of our lawyers today.

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