In situations where a married couple or members of a domestic partnership cannot agree on anything, they frequently believe that their only recourse is to file a petition for dissolution with the superior court in their area and end their legal connection to each other. California family law provides various options for divorcing couples, including divorce procedures. Among these are formal separations, which enable partners to safeguard specific financial and private interests without dissolving their unions. The law in California is unclear regarding legal separation after divorce. Most people understand the concept of divorce, but not everyone is familiar with the specifics of a legal separation. Read on to find out more about the benefits and disadvantages of legal separation vs. divorce in California.
Let’s begin with the basics.
Legal Separation Vs Divorce California: What Is a Divorce?
It is useful to see divorce as having two unique components when defining it. The first thing that comes to mind when you imagine a divorce case is negotiation. Getting the ultimate judgment of dissolution, or the divorce decree, comes in second.
There are several ways that the negotiation phase may proceed. The negotiation phase of a disputed divorce typically entails engaging family law counsel and appearing in court to resolve family law concerns such as property distribution, child support, spousal support (commonly referred to as alimony), and child custody. In an uncontested divorce, this could entail having one-on-one meetings or using a mediator to come to a financial, custody, and child support agreement with your ex.
Getting a divorce decree is the second step in the California divorce procedure, and it takes place in court. The court will issue this document to formally dissolve your union and return your marital status to “single.”
It is possible to get a divorce decree even if you don’t agree on any concrete terms. Perhaps such provisions are already spelled out in your prenuptial agreement, or perhaps you and your partner never really entangled your lives and finances that much to begin with.
Divorce cannot, however, occur without a divorce decree. Your marriage isn’t finished until you receive the judge’s approval for your divorce, which is your divorce judgment.
California Divorce Requirements
In California, there are a few prerequisites for divorce, the first being eligibility. Accordingly, one spouse needs to have spent three months living in the county where the application was filed and six months living in the state.
Secondly, it’s important to know that all divorces in California are no-fault, meaning that neither party explains the split. It also implies that the judge will not endorse decisions or take fault into account when dividing up property.
Lastly, there are certain procedures for getting a divorce in California, including a six-month waiting period after filing. First, the petition and all necessary documents are filed and served to the other spouse by one spouse. Subsequently, the pair drafts the agreement either together, through mediation, or with legal assistance. Finally, the decision is made by a judge.
Reasons for Divorce Rather Than Separation
One or more of the following factors could lead you to decide against going through with a formal split:
- It makes sense to avoid wasting time and money obtaining a legal separation only to have to spend more of both to obtain the divorce later if there is no financial gain and you believe your marriage will ultimately end in divorce.
- You should dissolve the marriage if you don’t want to handle their financial or medical decisions if they are unable to do so, as you are not their next of kin.
- You must file for divorce to safeguard your financial interests if your state does not recognize legal separation.
Legal Separation Vs Divorce California: What Is a Legal Separation?
Legal separation is a suitable option for couples seeking a separation agreement without undergoing a formal divorce process.
The procedures involved in a divorce and legal separation are quite similar. To formalize a child support or custody agreement, you still submit a petition, your spouse responds, and you have access to the California family court system.
All of the same resources that you would have if you were divorcing your husband are also available to you. For instance, even if you decide at the end that you do not want the divorce decree, you can still go through divorce mediation.
Furthermore, you can still see a divorce lawyer for legal guidance, and your attorney-client relationship will remain the same as if you were divorcing.
Most significantly, your formal separation agreement will be fully accepted, enforceable, and binding on the law. The stipulations mentioned in a legal separation judgment will be incorporated into it, unlike a divorce ruling.
California’s Legal Separation Requirements
California’s legal separation conditions are often identical to those for divorce, except for the absence of residency requirements. Furthermore, to file for one, just one spouse must be a resident of California.
In California, the procedures for initiating a formal separation remain identical as well. The same court forms are used, and the same guidelines are followed.
On the paperwork, you check the box for a legal separation rather than the divorce box when you file for a legal separation. The fact that you remain legally married after the procedure is another significant distinction.
Why Legal Separation Is a Better Option Than Divorce
You might decide on legal separation for the following reasons:
- You can protect yourself financially while deciding whether or not you want a divorce, and if you change your mind later, you can undo the formal separation.
- Legal separation is permitted if one wishes not to be divorced due to their children’s needs or religious beliefs.
- Legal separation is preferable to divorce if you want to make sure your spouse can use your employer’s health insurance or if you want to submit a joint tax return.
- If you must remain married for a certain amount of time for your spouse to get military and Social Security benefits, then file for legal separation until you reach that point, at which point you should make your next move.
Legal Separation and Divorce in California: Differences
You may be wondering why you should choose a legal separation over a divorce now that you are aware of their differences.
Now that we have discussed some of the practical distinctions between the two, you should be able to determine which is best for you and your partner.
- Legal separation allows couples to avoid some of the formalities associated with divorce.
- Couples who have legally separated still have certain rights and obligations.
- Legally separated couples find it easier to get back together.
- One can remarry after a divorce.
- There are certain financial advantages for divorced people.
FAQs
Does a Californian legal separation save you from financial harm?
If you decide to get divorced later, any income, property, and assets you obtain after the date of your formal separation will be protected from California’s property division laws because they will be considered separate property, not communal property.
What qualifies as a Californian legal separation?
Irreconcilable differences or incurable insanity are good reasons for legal separation. The process of separation also takes into account several factors, including spousal support, child custody, property splits, and asset protection.
In California, who gets to stay in the house when the couple is separated?
If the couple can’t agree on who lives in the house, property division laws will be used by the judge to make the decision. Since California is a community property state, anything the couple acquires together is equally theirs.
In a California divorce, what rights does the wife have?
In California, a wife can get up to 40% of her husband’s income and half of the marital assets as payment for spousal support, child support, and other provisions of the divorce settlement.
Legal Separation Vs Divorce California: Conclusion
Divorce or separation can be difficult for any pair. It’s not simple to break your vow of commitment to one another, particularly if you both have children that you want to keep safe. We are aware of the complexity of California’s divorce laws, but you don’t have to go through this difficult process alone. Speak with a lawyer about the distinctions between a divorce and a legal separation in California.
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