Legal Separation in California: What’s the Process?

What’s involved when it comes to legal separation in California? It’s ideal to understand all the details.

Read further on now.

Introduction

Because there is a 6-month cooling off period required for a divorce in California, many residents tend to believe that they have to become legally separated before a marriage can be terminated. But that’s not really what legal separation is all about. In fact, it is an alternative to divorce, rather than a step towards it.

A legal separation typically stems from a marriage that isn’t working. Here’s what you need to know about – as well as how to get the process started.

Why Choose a Legal Separation?

In California, married couples can legally separate. They can move forward – without divorcing – and continue to live life as two entirely separate individuals, though they cannot remarry or enter into a new domestic partnership until their marriage is dissolved. You can, however, create boundaries when it comes to finances as well as any assets, debts, child custody, and so forth. So, why not just get divorced? Below you will find a few reasons why many couples choose legal separation over divorce.

• Religious beliefs don’t allow divorce.
• You think you may be headed for a divorce, but you aren’t 100% sure.
• You are not ready for divorce, but want to set boundaries for things like custody, finances, and assets.
• Waiting to meet California’s residency requirements for divorce.
• You’re ready for a divorce but aren’t ready to give up the perks of being married, such as certain tax benefits, social security or pensions, insurance coverage, etc.

Finally, maybe your personal beliefs just don’t allow for a divorce. Whatever the reason, legal separation is a common option chosen by many couples.

California Requirements for a Legal Separation

In order to obtain a legal separation, you have to meet certain criteria. For instance, one of you must be a legal resident of the state. The requirement, or lack thereof, is that there is no specific residency requirement as there is for divorce. That means you just have to be a resident, without having to be a resident of California for at least 6 months or a resident of your filing county for at least 3 months.

As stated in California’s Family Code § 2310, the grounds for legal separation may be based on either (or both) of the following:

“(a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage.

(b) Permanent legal incapacity to make decisions.”

Most couples cite irreconcilable differences as their reason for seeking legal separation. This is just a general way of saying that the marriage has been broken down and there does not seem to be any way to truly repair it. Because California is a “no fault” state when it comes to divorce, the same rule applies to separations.

Starting the Process

When you are ready to begin the process of legal separation in California, it is important to note that there is no waiting period. You can simply file whenever you are ready. And the process is essentially the same as it is for divorce.  Family Code § 2330 states the basic details necessary to get the action started, which includes:

“(a) A proceeding for dissolution of marriage or for legal separation of the parties is commenced by filing a petition entitled “In re the marriage of __________ and __________” which shall state whether it is a petition for dissolution of the marriage or for legal separation of the parties.

(b) In a proceeding for dissolution of marriage or for legal separation of the parties, the petition shall set forth among other matters, as nearly as can be ascertained, the following facts:

• (1) The date of marriage.
• (2) The date of separation.
• (3) The number of years from marriage to separation.
• (4) The number of children of the marriage, if any, and if none a statement of that fact.
• (5) The age and birth date of each minor child of the marriage.”

You complete the standard court forms and file them with any declarations of property and debts that you two share. If minor children are involved, you will need to complete additional forms, specifically the declaration under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and an optional Child Custody and Visitation Application Attachment.

These forms get filed with the court and a summons is issued – and must be served on the spouse. The spouse may either ignore the summons or answer it. Either way, you do not necessarily need the spouse’s authorization to move forward with the separation.

If possible, you want to work with each other to come to an agreement surrounding the separation of property and debts. A mediator can help make this possible. The alternative will be to allow the judge to decide how the property is going to be separated – without your input.

Additional forms and steps are often required throughout the process, pertaining to your case specifically.

Keep in mind that the date of actual separation doesn’t occur until the judge issues a judgment. This is the date used when determining the responsibilities for each party concerning finances, assets, child custody, etc. The date of actual separation is likely to be different from the date of physical separation – which most often occurs prior to the court filing. Actual separation is when the parties physically separate (including moving into separate residences) and have expressed their intent in ending the marriage.

Why Hire an Attorney?

Hiring an attorney can be a beneficial step when looking to legally separate. This is especially true if your spouse has hired their own attorney. There are many steps involved in the process and many things at stake – such as property, child matters, and so forth.

When a marriage reaches the point of seeking a legal separation, the communication has usually broken down, too. An attorney will handle all your correspondence, court filing, and the like – and will be the point of contact for anyone trying to discuss your case.

Protect your rights, the rights of your children, and the property you don’t want to lose by hiring an experienced attorney to handle your legal separation case in California.