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How Does a Legal Separation Relate to Divorce in California

On Behalf of | Oct 3, 2020 | Legal Separation

How does a legal separation relate to divorce in California and when should you consider a legal separation in Carlsbad and North County San Diego?

The process of a legal separation is very much like getting a divorce.  One party files a petition with the Family Court for a legal separation and the other party must respond.  As in a divorce, if the party receiving the petition does not respond the case will move forward anyway and be decided (by default) which means the petitioner usually gets everything requested in their filing.

One of the things which makes a legal separation relate to divorce is both parties must provide substantial mandatory and legally binding disclosures.  The spouses are legally held to the standard of a “fiduciary duty” which means they must make decisions act with the other’s best interests in heart and mind.

Many of the processes associated with a legal separation relate to divorce and your objectives must be identified and protected. A legal separation should address issues of the division of community property including any marital interest in a business or professional practice, child custody and parenting time as well as child support and/or spousal support.  If the parties cannot agree upon an issue it must be resolved through negotiation with their legal counsels, mediation or by a decision of the Court.

However, a divorce legally brings the marriage to an end, while a legal separation preserves the underlying marriage.  You may be wondering why in the world would anyone want to do that?  Why would anyone want to go through all of the same paperwork, process, emotional challenges and negotiations of a divorce and still be married once the process is completed?

The two most common reasons are health care and religious beliefs.  Here in California, if you are legally separated you may remain on a spouse’s health insurance coverage.  This provides specific advantages and continuation of care when the marital relationship may be coming to an end, but there are substantial health issues for one of the parties.  There may also have been a catastrophic health related event leaving one of the spouses incapacitated and unable to make legal decisions.

Legal separation may be appropriate when one or both of the spouses are in the military or during a deployment.  In other cases a divorce breaks religious vows of marriage which violate beliefs and moral convictions.

In many cases the parties simply need time.  You might be surprised by how many couples actually reconcile during the process of a divorce.

There may be a residency issue, as the law requires one of the spouses to have lived in the State of California for at least 180 days prior to filing for a divorce, and three months in the county where you intend to file.  In other cases there may be challenges associated with an immigration.

What makes a legal separation relate to divorce is the process one must go through as well as the legal resolution of issues surrounding children, community property, business ownership, and support.  The parties are simply still legally married during a legal separation.

The complex legal, financial and moral decisions make a legal separation relate to divorce in California in many ways.  This is why it is so important to seek the advice of the Certified Family Law Specialists at Burke & Domercq.

Protect your own interests and contact us or call 760-389-3927 to schedule an appointment for a remote or socially distanced consultation with one of our experienced Certified Family Law Specialists.