California Legal Separation Vs. Divorce (Which Do You Need?)

legal separation vs divorce

Legal separation and divorce both involve a couple living separately with a specific legal agreement. Legal separation is a situation where you are no longer living with your spouse but remain legally married. It is not simply living apart though, as it involves a specific legal agreement. Divorce is the more final option, where you are not legally married anymore.

When a couple has decided to take legal steps to separate, there are a few decisions to be made and some complex steps to take. The Law Offices of Bruce A. Mandel can expertly guide you during this difficult transition in your life.

A legal separation is similar in some ways to divorce, in that there are still negotiations to be made.

During a court-sanctioned separation, you’ll have a court order that details each of your rights and responsibilities. A legal separation agreement covers the same issues that are covered in the final divorce decree.

Not all states allow legal separations, but California is one that does. Your spouse needs to agree to it or at least default after you have served him with your petition. If he does not consent you may have to file for divorce instead. On that note, legal separation is not a decision to be made lightly.

Specific California Divorce & Legal Separation Requirements

California is a “no-fault” state, meaning one spouse doesn’t need a specific reason to file and the other spouse doesn’t need to agree. This means one spouse doesn’t need to prove the other was involved in certain actions, like adultery for example.

There is no waiting period for a legal separation, whereas when you file for divorce, you need to wait six months before it becomes final.

If you’re new to the state, you may be able to expedite the divorce if you first file for legal separation. You must be a resident in the state for six months before you file for divorce. If you’ve just moved to Torrance from another state, you may wish to file for legal separation to get things underway.

The term legal when referring to separation is just that. The negotiations are like divorce in terms of child custody and support, visitation, spousal support and division of property. Consulting a financial adviser as well as a trusted local Torrance attorney who knows the local courts is in your best interest.

Both legal separation and divorce require the same grounds to file. Aside from the residency requirements, you must choose the reason for your petition, whether it is irreconcilable differences or the incurable insanity of your spouse.

California is a “no-fault” state, meaning one spouse doesn’t need a specific reason to file and the other spouse doesn’t need to agree. This means one spouse doesn’t need to prove the other was involved in certain actions, like adultery for example.

Why Would You Choose Legal Separation?

A Torrance divorce attorney can explain what your options are and the pros and cons of each potential course of action. Either option is a tough choice. It is a trying time of your life and getting competent legal assistance will help things go smoothly for you.

Some people choose legal separation for a specific period and others choose it as a gateway to the final divorce. If you choose to separate, you’ll need to go through the additional legal steps necessary to become divorced if that becomes your path down the line.

Marriage affords benefits and ties which for various reasons some couples choose to keep. Some feel they cannot remain living together but find reasons they don’t want to divorce.

Some Reasons To Choose Legal Separation:

It is important when living apart from your spouse to separate legally with a formal written agreement. A written agreement addresses the issues of spousal debt that you might be liable for during the separation.

  • There is a tax benefit for you and your spouse to remain married.
  • You are not sure if you may reconcile or not. The time away from each other may be used for considering your options. It may be possible to seek counseling and try to overcome the difficulties in your marriage.
  • You are not eligible to file because of residency restrictions. You need a legal agreement while you’re waiting to become eligible.
  • One spouse is eligible for the other’s government or medical benefits and you would like to retain those rights.
  • One of you do not believe in divorce for religious reasons.
  • One or both of you is struggling financially and you want to stay married to ensure the other gets on their feet.
  • One spouse will soon become eligible for the other’s social security benefits. If you are married for 10 years you become eligible for a larger amount of their social security retirement.
  • You and your spouse aren’t ready to negotiate a divorce agreement. A legal separation protects your financial interests in much the same way as divorce.

It is important when living apart from your spouse to separate legally with a formal written agreement. A written agreement addresses the issues of spousal debt that you might be liable for during the separation. You must document how you will share marital assets, joint credit cards and who pays for each obligation and bill.

Our clients seek the assistance of our Torrance law offices to avoid problems down the road leading to further legal costs.

When a couple remains separated for a lengthy amount of time, such as months or years, it becomes even more necessary to legally protect their interests.

Why Would You Choose A Divorce?

  • You want to get remarried at some point. To legally remarry you’ll need to be officially divorced.
  • You want to financially split from your spouse, aside from child support or spousal support obligations.
  • You are sure you want to end the marriage.
  • There is no financial benefit from a legal separation. There is no need to spend time and money on a separation, then turn around and pay for a divorce.

What Is Involved In The Procedures?

The two legal procedures are both complicated. Utilizing the services of an experienced Torrance attorney who is familiar with the process, paperwork, and terms involved is vital.

Each procedure follows a similar course which starts with filing a petition. You then disclose your financial details and position to your spouse and the court. You will need to decide on how to divide property, what child support is owed and how you’ll work out co-parenting where children are involved.

In both situations, you can arrive at a settlement agreement to resolve financial and other legal decisions or go into the court to decide them.

Either way, a skilled Torrance attorney will help you emerge informed and making the right choices. Attorney Bruce A. Mandel’s team can guide you to understand the law and show you your options during this stressful period.

A summary divorce is a simpler option if you qualify. You must have no children, limited assets, own no property, have very few debts and have been married for less than five years.

You’ll have less paperwork, fewer court appearances and it will be quicker for you. It is a streamlined dissolution. It doesn’t necessarily require an appearance before a judge. You and your spouse agree on how to divide your property and debts and file an agreement with those decisions, along with a divorce petition and other forms.

Even less complex situations like that are legally and emotionally difficult. Become aware of potential problems before they come up. You have certain rights and decisions to make when separating or divorcing in Torrance.

Our firm wants to help you reach your optimal outcome.

Ease the process for yourself by facing this journey with a knowledgeable attorney who can answer your questions about options and decisions you will be facing. You’ll know the best course of action when you choose the right attorney.

When you decide to divorce, there is a specific procedure to follow.

The Divorce Procedure

  1. A divorce petition is filed and served from one spouse to the other.
  2. The receiving spouse (called the respondent) has 30 days to file a response to the petition.
  3. One of the spouses may request a hearing where a judge will create temporary child custody and spousal support. An attorney can help vastly so you will be able to navigate the court system.
  4. Each spouse exchanges information and documents related to the divorce. Each person is required to disclose income and expenses.
  5. The spouses can then meet with each other and their attorneys to discuss settlement of the case. A Marital Settlement Agreement will be signed which will include all the terms of the agreement.
  6. A trial will take place if one spouse doesn’t agree on all issues in the agreement.
  7. After both parties sign the Agreement or when the trail has concluded, a Judgment of Dissolution of Marriage will be prepared. It will contain all the court orders.

The Legal Separation Procedure

  1. Decide on the legal grounds for your separation, whether it is irreconcilable differences or incurable insanity.
  2. File a petition which includes options for separation and divorce. Our firm will help you with the form.
  3. File the form (FL-100) at your local county court. There will be a box to check for separation. You will also provide information about your children and property. You can request that the court give orders about your children’s custody.
  4. File the form (FL-105/GC-120) if you have minor children. This form establishes whether it has jurisdiction over a child in case one parent lives in another state. Seek help from a Torrance attorney to ensure you’ve filled out the forms correctly.
  5. Pay the filing fee. You can find out about this fee from the local courts or your attorney.

Serve your spouse with a copy of the court papers. This can be done by hand or by mail by a process server or someone over the age of 18.

A legal separation agreement will cover all issues that would be covered in a divorce. Child support is documented as well as how much time each parent will have with the children. The documentation protects your interests and can be the same agreement if it comes time for a divorce. A different agreement can be drawn up for a legal divorce if both parties don’t agree on the initial agreement they had a chance to give a trial run in the separation.

Regardless of whether you have decided on a legal separation or divorce, or are still unsure, consult with our skilled team at the law offices of Bruce A. Mandel for your best possible outcome. Call us at 424-250-9130 so we can get to know you and your situation.

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