Legal separation and divorce in California

Morton J. Grabel, Attorney at Law

Special to the Village News

Most couples do not receive any real benefit from a legal separation compared to a divorce. It’s only suitable when you no longer want to be married, but for personal reasons, divorce is not an option.

For example, you may want to keep your spouse on your insurance until everything else is resolved. In California, however, there may be one other advantage. If time is of the essence and you haven't lived in California for six months, you can accelerate the divorce process by filing for a legal separation first.

Legal separation by consent or default only:

Legal separation by consent or default is not an option in California 1) unless your spouse agrees to go this route or 2) your spouse defaults after you have served your spouse with your petition. This means your spouse must either refuse to participate, allowing it to proceed without objection (a default is filed), or file a response to your petition, consenting to the legal separation. Otherwise, you have no choice but to file for divorce.

Requirements

California is a no-fault state and both legal separation and divorce require the same grounds. You must choose between a) irreconcilable differences or b) incurable insanity of your spouse. The similarities between filing requirements end there. You must have lived in the state for six months before you file for divorce, but there is no time requirement for a legal separation. After you file for divorce, you must wait an additional six months before your divorce can be final.

Procedure

Filing for a legal separation is as complicated as filing for divorce. The two procedures follow an almost identical course, from I. serving the petition to II. disclosing complete details of your finances to the court and your spouse. III. In both cases, you can mutually enter into a marital settlement agreement resolving the issues of your marriage or you can force the court to decide those issues in a trial. Clearly working out details jointly including custody matters regarding children is better than having the court order what you can and cannot do.

A Third Possibility: California’s legislation does however provide for a summary divorce. This option is simpler than either a separation or regular divorce. But to qualify: A) you do not have any minor children, B) do not own any real estate, C) have limited assets/debts and D) have been married for five years or less.

Decrees

A decree of legal separation addresses the same things a divorce decree does including support paid to either spouse and for children of the marriage. Both resolve issues of custody, visitation and property distribution. The terms of each are binding. The most significant difference is that a legal separation does not end your marriage and therefore you cannot remarry.

Conversion

California law allows you to convert your legal separation to a divorce after your separation is final or at any point during the legal process. Either spouse can file with the court, requesting the conversion. Naturally, this requires additional paperwork.

But and as previously written; if you’re in a hurry to get your divorce moving but have not established residency yet, you can file for legal separation immediately. The six-month waiting period for the final divorce decree begins ticking down as you work through the legal separation procedure. When it has expired, you can file to convert your matter to a divorce.

The above information does not establish an attorney-client relationship. To gain the advice of Attorney Morton Grabel, call his Temecula office at (951) 695- 7700.