Nationwide, divorce rates are falling, and California has a particularly low divorce rate. There are many reasons, such as competitive housing markets and job opportunities, that can hinder a couple’s desire to embark on a path of separation or divorce. These factors, compounded with California’s various separation and divorce laws, can make the process challenging. As such, anyone contemplating separating from a spouse in California should consult with an experienced divorce attorney.
How to End a Marriage in California
Ending a marriage is not an easy decision. Still, if you’ve concluded that it’s time to begin the process, there are three primary ways to end a marriage or domestic partnership:
- Divorce,
- Legal Separation, or
- Annulment.
Each of these methods has its own legal requirements and consequences. Accordingly, the available and appropriate path to ending a marriage hinges on the unique facts and circumstances of the couple’s relationship. Often, there isn’t a “right” or “wrong” choice between legal separation and divorce because the decision is unique to your situation.
Legal Separation Laws in California
Unlike many other states, California’s legal separation matters typically involve the courts. Legal separation in California allows a married couple to live separately while maintaining their marital status. Further, this allows the couple to formalize their separation without terminating their marriage. There are a few reasons why a couple may choose to proceed with a legal separation over a divorce, for example, to maintain insurance benefits, to keep children in a particular school district, or to prevent the need for either spouse to purchase a new home.
The Difference Between Divorce and Legal Separation in California
In California, divorce and legal separation are distinct legal proceedings. A divorce order legally terminates the marriage, allowing both parties to remarry. The legal marriage remains intact in a legal separation, and neither individual can remarry. Further, the court engages in asset and debt division under both processes. However, in a divorce, the division is final, unlike a separation, where there is a mutual understanding that the individuals may reconcile. Additionally, while both processes address spousal support, healthcare benefits, and child custody, the finality of these decisions varies depending on whether the parties are pursuing a divorce or separation.
Choosing a Legal Separation in California
Legal separation may be a good option for many reasons. Fundamentally, legal separation allows spouses an alternative to divorce that addresses various personal, financial, and emotional considerations. It provides the benefit of a legal framework often necessary for emotionally fraught family law matters while allowing individuals to maintain their marital status and future options. Further, many couples choose legal separation because it aligns with their religious or personal convictions regarding divorce. This option allows couples to live apart in a way that comports with their religious or spiritual traditions.
Common Issues with Legal Separation
Separating from a spouse in California may be the best course of action for many people. Although legal separation offers many benefits, it can also elicit certain issues and challenges. Many people feel uncomfortable with the lack of resolution often seen in legal separations. Unlike divorce, which legally terminates a marriage, legal separation can keep the parties in limbo. The uncertainty can leave individuals unsure whether to proceed with a divorce or reconcile.
Further, while legal separation is not as permanent as divorce, the legal process is similar. In California, legal separation entails various court filings, negotiations, and, in some cases, contested hearings. Similarly, the couple must address complex issues involving finances, spousal support, and child support. While legal separation allows the couple to maintain healthcare benefits, in some cases, employers may fail to recognize legal separation, leading to the loss of benefits. Moreover, there are limitations to enforcing and remedying breaches of a separation agreement.
Although legal separation is a valuable option for certain couples, it entails complexities and unanticipated issues. It is essential that anyone contemplating separation or divorce speak with a family law attorney to discuss the legal separation process.
Contesting a California Legal Separation
Under California law, legal separation is only available if both parties agree to this option. The court will not grant a separation if one spouse contests the legal separation. However, the parties may negotiate or mediate to reach an agreement. If legal separation is not possible, then a party can file for divorce. It is important to note that, unlike other jurisdictions, California does not require couples to be legally separated before filing for divorce.
Unlike divorce cases, there are no residency requirements for a legal separation in California. A spouse can file for legal separation even if they have recently moved to the state and do not meet the six-month residency requirement for divorce. However, certain issues related to a separation, such as custody and property division, may be subject to California’s residency requirements.
Legal separation entails many complex issues, and an attorney with a comprehensive understanding of California’s unique laws is crucial.
Are You Considering Seeking a Legal Separation but Have Unanswered Questions?
If you’ve decided that it’s time to pursue a legal separation, you probably have a few questions about the process and could use the guidance of an experienced attorney. At Pakpour Banks, LLP, our team of family law attorneys has extensive experience guiding clients through the process of legal separation. We understand that you will have concerns unique to your specific situation, and we take whatever time is needed to familiarize ourselves with your priorities to ensure we’re on the same page. To learn more and to schedule a no-obligation consultation, give Pakpour Banks, LLP a call. You can also reach us through our online contact form.
Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.
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