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Do You Have To Legally Separate Before Going Through A Divorce In California?

Do You Have To Legally Separate Before Going Through A Divorce In California?

Our clients frequently ask if they are required to legally separate before getting a divorce in California. Although there is a common misconception that you must file for separation first, the short explanation is that there is no requirement for couples to legally separate before a divorce can be granted. Although legal separation is not required, many couples do file for separation before finalizing their divorce.

In California, there is a six-month mandatory wait period after a married couple files for divorce before the court can issue an order for the dissolution of your marriage. Because of this lengthy wait period, many couples file for legal separation to establish each spouse’s rights and responsibilities while waiting for their divorce to be finalized.

Legal Separation And Divorce In California

Legal separation is not a divorce, but it is similar to divorce in several ways. Couples who file for legal separation are still married, but some of the same family law issues that must be settled in a divorce must also be settled in a separation. Like divorce, separating couples can agree to terms regarding their rights and responsibilities. If they cannot reach an agreement, those terms must be decided by a family law judge.

A significant difference between separation and divorce is that you are permitted to marry someone else when your divorce is finalized. However, when you are separated, you are still legally married and thus prohibited from marrying someone else. If you decide that you want to marry another person when you are separated, you must first go through the divorce process. You are only free to marry again after the court has issued an order for the dissolution of your marriage.

What Issues Are Decided During Legal Separation And Divorce?

As mentioned above, the same family law issues decided in a divorce are also decided in a legal separation. Depending on your particular family circumstances, some matters that must be settled in both divorce and separation include the following:

  • Child custody – Child custody terms are based on the child’s best interests. They can involve decisions related to primary custody, joint custody, and visitation. They can also include other important decisions, such as religious upbringing and education.
  • Child support – California child support guidelines are meant to ensure the child’s health, safety, and overall well-being. Considerations in child support calculations are based on several factors, including the time each parent spends with the child, each parent’s income, number of children, healthcare costs, childcare costs, and education expenses.
  • Spousal support – Spousal support terms provide for one party to make payments to the other party. These terms can be temporary or permanent and are based on each couple’s unique circumstances, such as the length of the marriage, marital standard of living, each party’s income, debts and assets, and other factors.
  • Property division – California is a community property state, which generally means that all assets acquired and debts incurred during the marriage are split equally between parties. Examples of marital property may include bank accounts, homes, and automobiles. Inheritances, gifts to one party, and property owned before marriage are typically considered separate property and not divided between spouses.

Reasons To File For Legal Separation

People file for legal separation for a variety of emotional reasons and practical matters. As mentioned above, divorcing couples may need to establish each party’s rights and responsibilities while the separation and divorce are pending. Some spouses also separate but remain married for insurance purposes and social security benefits.

Some couples decide to legally separate because religious reasons prevent them from divorcing. Couples also separate when they want to live independently of one another, but they want to leave the door open for reconciliation in the future. When children are involved, parents sometimes stay married for the benefit of the children.

Prenuptial And Postnuptial Agreements

California law recognizes and enforces valid prenuptial and postnuptial agreements. So long as they comply with California law, marital agreement terms may impact divorce and separation decisions, including property division and spousal support. Marital agreement terms regarding child support and custody are invalid and unenforceable, however.

Contact A Separation And Divorce Attorney

If you are considering a legal separation or divorce in California, contact attorney Bruce A. Mandel at 424-250-9130 or here to schedule a consultation to discuss your case. Divorce and separation can have lifelong impacts, and we can help protect your rights and pursue the best possible outcome in your case.

With more than 30 years of California family law practice, we have the experience and resources to provide you with the highest quality legal representation. Follow us on Facebook to learn more about our law practice and California family law matters.