Legal Separation in California

How to file for legal separation in California

People who call our office at Family Law Matters, often pose the question, “What is legal separation?” This is because you know that you cannot live together with your spouse anymore, because your relationship is no longer working.

You and your spouse cannot even be in the same room without arguing. The problem is that you are not ready to give up on the marriage just yet. There still may be some way the two of you can repair your relationship.

A legal separation is an official court order from the state where you and your partner live apart and carry on your lives separately. 

Married couples often believe that a trial separation is a good idea. You heard about legal separation and maybe it is a good idea.

The two of you can be apart for a while to see how things go. People frequently believe they need to hire a lawyer and file formal paperwork in order to proceed with a trial separation.

What couples often do not understand is that they can be legally separated without having to file for a legal separation. There is a difference.

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. No formal documents are needed to be legally separated.

However, when spouses file for a legal separation, they are filing a lawsuit in the court. This action, called a “legal separation” is very much like a divorce.

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?” The answer is, “No.”

You need not do anything if you are thinking about getting a divorce, but don’t know for sure if you want one. You and your spouse can live separate and apart without filing formal documents with the court.

Legal separation FAQ

Frequently answered questions about separation. Also find out about the difference between separation vs divorce.

The legal separation can be finalized prior to the so-called “six-month minimum time frame” required for a divorce. This is due to the absence of a marriage termination date in a legal separation.

Currently, the filing fee for a legal separation in California is $435, although this fee may differ in Riverside, San Bernardino, and San Francisco counties. During the legal separation procedure, many issues are handled similarly to divorce, including property, assets, debt, and child custody.

You and your spouse are not yet prepared to negotiate a comprehensive divorce settlement. Legal separation safeguards your rights and financial interests while you and your spouse decide whether or not to divorce.

The primary distinction lies in the finality of your decision. When a couple legally separates, they can live and act as separate individuals but can reunite as a married couple. Nevertheless, following a divorce, the decision to end the marriage is final and you are officially single.

Despite the fact that legal separation is not obligatory, many couples do file for separation prior to finalizing their divorce. There is a six-month mandatory waiting period in California after a couple files for divorce before the court can issue an order dissolving the marriage.

The three most significant disadvantages of legal separation are:

  • Legal separations are just as complex as divorces.
  • Equally stressful are legal separations and divorces.
  • There may be no need for a legal separation in your relationship.

If the tax law considers you to be “unmarried” because you received a decree of separation maintenance before December 31, you may file as “single” or “head of household.” To qualify as “head of household,” you must have a dependent and pay at least half of the costs associated with maintaining a home.

Avoid These 5 Mistakes During Your Separation

  1. Keep things secret. Immediately after announcing a divorce, everyone will have a viewpoint…
  2. Do not leave your home. 
  3. Do not pay more than your fair share.
  4. Avoid rushing into a rebound relationship.
  5. Do not delay the inevitable.

Obtaining a court decision

If children are involved in a legal separation, the judge determines their custody, maintenance, and education in accordance with their best interests and their legal rights. If possible, the judge considers any agreement reached between the parties.

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Property Division - Protecting Your Assets

Most people who consider getting a legal separation do so because they are not sure whether they really want to divorce their spouse. Sometimes, legal separation is an appropriate way to protect one spouse from being financially responsible for the other spouse’s debts.

Since a legal separation, as stated in California law, separates the parties’ finances, the action is helpful when the parties do not want a divorce but are worried about some future financial liability. The filing of a legal separation could protect you under the following circumstances:

Reasons for a Legal Separation in California

A legal separation is just like a divorce. All the assets and debts are divided. Custody and visitation is decided. Spousal support and child support are ordered (if appropriate), but if one spouse wishes to go through with the divorce at a later time, he/she must file new paperwork with the court to have the marriage dissolved.

A legal separation is only appropriate in a very narrow set of circumstances. The most common circumstances include

What Are the Issues Involved?

Each California legal separation addresses the same fundamental issues:
  • Child Custody refers to who has decision-making authority over the marriage’s children and where they live. Child Visitation refers to the day-to-day parenting schedule, including holidays and vacations.
  • Child Support: California has standardized “guidelines” for calculating child support that are based on the income of each parent and the amount of time the children spend with each parent.
  • Spousal Support: Also referred to as alimony, the sub-issues of whether or not support is appropriate, the amount of support to be paid, and the duration of support should all be addressed.
  • Property division: everything held, from retirement funds, bank accounts, and real estate, to furniture, furnishings, and appliances, must be divided in some way.
  • Allocation of debts: All debts, including credit card obligations, personal loans, and tax bills, must be divided.
  • Attorney fees: There are two primary reasons why a person may be required to pay the attorney fees of the other spouse. One reason is that one spouse has a larger financial ability to pay attorney fees than the other, and the other reason is because one spouse has acted inappropriately throughout the divorce procedures and gets punished.
 

The issue of marital status is conspicuously absent. You are still legally married to your spouse if you obtain a Judgment of Legal Separation. 

If you desire to divorce your spouse following the finalization of your Legal Separation, you must submit a completely new and distinct dissolution of marriage lawsuit.

Family Law Matters Discusses The Difference Between Legal Separation and Divorce

"Irreconcilable differences" officially refers to the inability of an individual and their spouse to get along well enough to keep the marriage alive, and this inability to get along can result in a slew of additional problems in the marriage.