Legal separation is a viable alternative to divorce for a number of reasons. It can offer a breathing space with greater flexibility for both parties before making the ultimate choice to dissolve a marriage. For some, religious considerations drive the choice towards legal separation as they are morally prohibited from divorce.
Whatever the motivation, understanding the process of legal separation can help alleviate the stress and strain that may accompany it.
How A Legal Separation Gets Started
Legal separation gets started just like a divorce. It requires a person to file a petition with the court, called the petitioner. California is a “no fault” state, so the petitioner does not need to show any cause or fault by their spouse. One person wanting a legal separation, or divorce, is sufficient.
The second party, called the respondent, may respond to the petitioner’s filing, but a separation cannot be held up for lack of a response. A “default” judgment will be given to the petitioner, and the legal separation will be awarded. There is no advantage to filing first and being the petitioner.
Dividing Assets, Child Custody, And Spousal Support
Legal separation does not mean that couples are no longer going to co-habitat, and they may remain married for the rest of their lives. Indeed, maybe romance can be rekindled. Yet, the division of assets, child custody, and spousal support will all need to be agreed to or ordered by a judge, just like a divorce.
Mandatory financial disclosures determine the couple’s community assets. These are divided 50/50 unless the couple has an agreement. Debts and liabilities will also be assigned. Assets acquired after the date of separation are considered separate property, not community.
The date of separation happens immediately upon the couple living separately, or when they have the intent to no longer live as husband and wife. For example, filing a petition for legal separation triggers the date of separation.
As with assets, child custody can be determined by the parents agreeing to a plan. If one parent does not follow the agreement, however, a court will not be able to enforce it until it becomes a court order. If left to the court, the presumption is 50/50, and preference for a parent based on sex is prohibited. Deviating from the 50/50 presumption is guided by the best interest of the child. The child’s preference may be taken into account, depending on their maturity.
Unless the parents come to an agreement, the court will follow prescribed guidelines to determine child support. Spousal support is considered after child support and is determined by a number of factors. For example, comparative earning power, length of the marriage, contributions to the household, and domestic violence could all be considered.
For marriages under ten years at the date of separation, spousal support cannot be longer than half the length of the marriage.
Contact An Experienced Torrance California Legal Separation Attorney Today
Legal separation, while not ending your marriage, can seriously affect your rights and living standard. The terms of a legal separation, if it becomes a divorce, are presumed to be the terms of the divorce. So, even if you want your marriage to be rekindled, you must still protect yourself.
Experienced attorney Bruce A. Mandel can help you understand the process of legal separation, how it can work for you, and how to protect your interests. Contact Bruce A. Mandel today, and please feel free to follow on Facebook.