Pros And Cons Of Legal Separation And Divorce
If you do not want to enter a final divorce decree and end your marriage, then legal separation would be the way to go.The pros of legal separation include the following:
- Remain married
- Live separately and apart from your spouse
- Gives you time to determine if you want to get divorced
- Allows you to stay married for personal reasons, including religious beliefs, concerns over health insurance, and more
- Covers matters including property division, spousal support, child support, and child custody
- File joint tax returns
Why Choose Divorce Over Legal Separation
There are many reasons for a couple or one spouse to choose divorce over a legal separation. When considering legal separation vs. divorce in CA, divorce could be a better option for the following reasons:
- One of the spouses wants to remarry. Because you cannot remarry if you are only legally separated, you must be divorced to remarry.
- You know that you want to end your marriage and do not want to consider reconciliation.
- There is no emotional, financial, moral, or religious reason to stay married.
Reasons To Choose A Divorce
In other situations, a divorce may be preferred.
- If you don’t see any financial benefit from a legal separation and are certain you want to end your marriage, it might be best to go straight to a divorce. Otherwise, you’ll spend time and money getting a legal separation only to have to go through the process all over again to get a divorce.
- If you want to get remarried, you’ll also need a divorce because you can’t legally remarry with a previous marriage in place.
- If you want no connection with your spouse, such as the ability to make medical or financial decisions for one another, divorce may be preferable, as you are no longer considered next of kin.
It is important to note that not all states allow legal separations. In these states, you’d need a divorce to financially split off from your spouse.
There are key differences between legal separation and divorce. And while we’ve outlined some of them above, your financial advisor or lawyer can advise you on what would be best for you. We hope this article helps you have a more informed conversation as you work through your personal situation.
Learning Center articles may describe services and financial products not offered by Protective Life or its subsidiaries. Descriptions of financial products contained in Learning Center articles are not intended to represent those offered by Protective Life or its subsidiaries.
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Why Would Anyone Want To Be Legally Separated And Still Remain Married
Two people may agree to a legal separation judgment instead of dissolving their marriage for a variety of reasons. Sometimes, a man and woman for religious reasons do not want a divorce judgment. Other times, they may want a judgment of legal separation versus a divorce because they think it could benefit one or both of them on issues such as insurance. Whether it actually does help or not is beyond this article’s scope. What matters is husbands and wives usually have their own reason why they want a legal separation instead of a divorce.
What You Need To Know About Legal Separation In California
One of the biggest misconceptions is that you have to be legally separated before you get a divorce in California, but nothing could be further from the truth. A legal separation is an alternative to divorce, not a mandatory step towards divorce. The fact is that a legal separation and a divorce are two similar but distinct types of cases that legally change the structure of your marriage and relationship in a permanent way. Here are some of the key facts you need to know about legal separations.
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Let An Experienced Attorney Help Contact Claery & Hammond Llp
If you seek to separate from your spouse, whether it be legal separation or divorce, it will be important to have efficient legal representation throughout the process, from filing the divorce petition to discussing your settlements. The attorneys at Claery & Hammond, LLP can evaluate your case and determine your next best legal steps to move forward with the separation process.
Contact Claery & Hammond, LLPtoday to schedule your free consultation.
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Couples Undergoing Legal Separation Get To Bypass Certain Legal Requirements Of Divorce
One of the most intimidating aspects of getting a divorce is navigating all of the rules and procedures associated with the process. Luckily for you, opting for legal separation may be a way to clear some of the red tape.
First of all, couples who want to get divorced in California must first satisfy the states residency requirement.
To be specific, at least one spouse must reside in California for at least six months before they can legally file for divorce. If you and your spouse do not meet this requirement, your petition will be rejected, and youll have to try again later on.
Thankfully, California does not have a residency requirement for legal separation.
This means that if working out terms of your breakup is urgent, you can file for legal separation instead, and still end up with a binding legal judgment. If you later want to turn your legal separation into a proper divorce, then most of the work will already be done.
Similarly, the state of California has a mandatory six month waiting period between when the petition is filed and when a court will be willing to issue a decree of divorce.
There is no mandatory waiting period for couples undergoing legal separation. If you and your spouse manage to get it done sooner, you will have the legal protections of an enforceable agreement sooner as well.
You can download the California divorce papers for free from this link.
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What’s The Difference Between A California Divorce And Legal Separation
When it comes to the law, specificity is important. While divorce and legal separation both denote a “break-up” between two legally wed individuals, they both have different legal repercussions in the long run. Here’s a quick guide to divorce and legal separation, as often handled by our prescreened California Family Law Attorneys.
Overview Of Legal Separation Vs Divorce
When comparing legal separation vs. divorce, you need to understand what legal separation does and does not do. Legal separation involves a process in which a couple remains married but lives apart. Legal separation allows a couple to put their marriage & domestic partnership on hold.
During this time, they maintain separate control over their personal finances and personal property. When deciding between legal separation vs divorce, keep in mind that legal separation provides couples with more time to think about whether or not to terminate their marriage. Legal separation therefore precedes divorce.
Legal separation entails more than simply moving out or performing the division of property. The estranged spouse must petition before the court to get a legal separation order. A legal separation order does the following:
- Divides property
- Establishes child custody and support requirements
- Outlines property rights just like the case with permanent separation
- Outlines the parenting plan during the divorce process
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What Is The Difference Between Being Legally Separated And A Legal Separation In Murrieta And Temecula California
Being legally separated is a state of mind. It is when one spouse in a marriage decides that the relationship is broken forever and cannot be fixed- no matter what happens.
That spouse then takes some action to end the relationship- such as moving out or separating the finances. For a separation to be legally binding, there are no legal papers required.
However, when spouses file in California for a legal separation, they are filing a lawsuit in the court. This action, called a legal separation is very much like a divorce.
In California, a Legal Separation must meet certain requirements.
There is no residency requirement in California for a legal separation, which means that you dont have to be a California resident for six months or even a resident of the county in which you are filing for a minimum of three months.
The courts issue orders for property division, debt division, spousal support, child support and child custody.
The proceeding is very much like a divorce. The only difference is at the end of the litigation, the parties remain married and have to file new paperwork to end the marriage.
When people ask us about a California legal separation, they often are asking about a trial separation.
The question is, Do I need to do anything legally if my spouse and I want to separate temporarily? No, is the answer. If youre contemplating divorce but arent sure if its for you, theres nothing you need to do.
Faqs About Divorce Vs Legal Separation In California
How many years do you have to be separated to be legally divorced in California?
In California, spouses are not required to be separated before getting a divorce. However, California does have a six month waiting period for all divorces.
Are you legally separated once you file for divorce in California?
When filing for divorce in California, spouses must determine a date of separation. This date signifies the break of the marital relationship and will determine when the couple is legally separated during the divorce.
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Reasons For Choosing Legal Separation Instead Of Divorce
While legal separation and divorce are similar and may eventually lead to the same outcome of dissolution of marriage, there are many reasons that couples opt for separation. The most common reason couples choose legal separation over divorce are:To allow the couple some time to see if a divorce is really what they want. It could be that after some time apart, reconciliation is possible. In this case, a legal separation will be more beneficial than a divorce. If this decision is made after the divorce has been finalized a good amount of money would have been unnecessarily spent on court and attorney feesTo uphold religious beliefsTo retain tax or military benefitsTo wait until they meet the residency requirement of living in the county for three months and the state of California for at least six months
What Is A Legal Separation In California
A legal separation is a legal process where spouses obtain a legal separation judgment from the family law court. The assessment may include, if applicable, a division of assets and debts, child custody and visitation orders, and an order for support. However, notably, the spouses status as married persons remains intact.
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Understanding Separation Vs Divorce
Divorce and legal separation have similar effects in many ways. Both a divorce and a legal separation legally create a space between you and your spouse. You live separately. Your finances are separated. Child custody, child support, division of marital assets and debts, and spousal support are all ordered by the court.
Divorcing and getting legally separated both create an important division in your lives and create financial rules and boundaries that you are required to live by.
The important difference between a divorce and a legal separation is that when you divorce, your marriage is formally ended. You are no longer married to each other. You are free to remarry. You live your life moving forward as a single person.
When you get a legal separation, however, you remain legally married to each other. You must continue to mark that you are married on forms. You cannot remarry. You still have the right to inherit from each other. A child born to a married woman is legally the child of the other spouse unless proven otherwise.
What’s The Point Of Legal Separation
The point of a legal separation varies depending on the couple. For example, if the couple practices a religion that prohibits divorce, a legal separation might be the only way for the spouses to remain in the religion while living independently.
In many cases, a legal separation allows couples to see what it would be like if they filed for divorcefor instance, they’ll experience co-parenting under a custody order and what it means to live on one income or spousal support.
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Should I Hire An Attorney
A separation agreement is the result of a negotiation between spouses, which can occur at your kitchen table, in a mediator’s office, or through attorneys for both sides.
Spouses may resolve some simple matters directly, without any legal help , but for most people, negotiating and drafting a comprehensive agreement that will hold up in court is difficult. Because the decisions made in a separation may have serious consequences, it’s best to hire an attorney who can protect your rights and draft a valid agreement.
In addition, communicating with someone you’re separating from can be challenging at best. If your marriage is ending, you and your spouse probably weren’t communicating very effectively before the breakup, and it’s not likely to get better now. Although some spouses remain friendly and reach agreements easily, most separating couples can’t expect to get too far in a one-on-one discussion before emotions boil over and get in the way of a resolution. Most couples need professionals that can create a buffer and negotiate with the other side.
If you need help drafting a separation agreement, or you have questions about whether you should pursue a court-ordered legal separation or a divorce, you should consult with an experienced family law attorney who can help you decide how to proceed.
Make Sure You Can File In California
To file for divorce in California, either you or your spouse has to have lived in California for the past 6 months and in your current California county for the past 3 months.
Legal separation You can file for a legal separation as soon as one of you moves to California. If either of you wants a divorce instead, you can change to a divorce once one of you has lived in California long enough.
Same-sex couples
If you married in California, but now live somewhere that doesn’t allow divorces for same-sex couples, you can file for divorce in the county you married. The court can end your marriage, but may not be able to make decisions about property, support, or children. Check with a lawyer to find out more.
Domestic partners
- If your domestic partnership is registered in California, you dont need to meet the residency requirement. But, if neither of you meets the requirement, the court could end your partnership, but may not be able to make decisions about property, support, or children.
- If its not registered in California, you will need to meet the residency requirement.
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Differences Between Dissolution Of Marriage & Legal Separation
Although there are many similarities between divorce and legal separation actions, discussed below, there are also stark legal differences between the two actions. The legal implications of divorce as opposed to legal separation can be very significant. Some of the differences include the following:
Which Should I File A Divorce Or Legal Separation
Whether you file for dissolution of marriage or legal separation, be prepared for participating in a lawsuit. As described above, the procedure and case structure is the same for both types of cases. The same disclosures are required, the same hearings will take place, and youll resolve your case the same way.
You should know that a very small percentage of cases are for legal separation. And generally, our advice is the same to most clients, which is that the downsides of legal separation actions are too great.
Many people seek a legal separation for religious reasons. They dont want to have a divorce because being divorced will be frowned upon by the religious establishment. It is important to remember that in all states, divorces are permitted based on a no-fault system and the responding party will not be able to stop the divorce from happening. In California, the Court will grant a divorce if the petitioner requests a divorce and meets the residency requirement. Therefore, if you are concerned about the religious implications of divorce, your spouse can always file and would be the petitioner and will be granted the divorce even if you object to the entry of judgment of divorce.
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When Simplified Probate Procedures Dont Apply
Unfortunately, the above Simplified Probate procedures may not be available for some estates. When a person has died and has not made necessary pre-death arrangements to avoid probate, and when the estate does not qualify under one of the Simplified Probate procedures offered under California law, the only option may be to file a full, formal probate proceeding. For more information on filing a complete Probate proceeding click here.
Filing Your Simplified Probate Proceeding Using our Self-help Services: In view of the voluminous paperwork required by the court, preparing all of the necessary probate documentation can be extremely overwhelming for the average lay person. For routine proceedings, this process can easily be facilitated with our full service document preparation and processing.
Contact An Experienced California Divorce Attorney
If you would like to explore your legal options further regarding a California legal separation or divorce, contact the attorneys at Moradi Saslaw. At Moradi Saslaw, we will listen to your circumstances, review your matter in its entirety, and offer honest and reliable advice to suit your needs.
No two legal separations or divorces are alike. Whether you have a case with complex assets or child custody and visitation issues or need help separating property after a long-term marriage, Moradi Saslaw can help. Contact our offices today for assistance and to schedule a confidential consultation.
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