Why Would You Get a Legal Separation Instead of a Divorce?
In California, the end of the legal separation process keeps you married. Because you are married, you can file taxes together, at times one spouse can remain covered by the other’s health insurance, and you can also work on the marriage to possibly reconcile.
These are very different outcomes from the finality of a California divorce. Let’s learn some more with this guide.
Types of Separation in San Diego
A married couple or domestic partnership in San Diego facing the possibility of a separation may find the legal options overwhelming. Understanding the differences between the various San Diego separation options of divorce, annulment, and legal separation is key.
The right choice depends on various factors. Seeking guidance is a good start and this guide is intended to provide an introduction about your options and how each differs so you can understand which aligns best with your circumstances.
Legal Separation vs Divorce
Ever wonder what the difference is between being legally separated and divorced in California? We have the answer for you in this article.
What Does Legal Separation Mean?
Legal separation in California is a legal process where a married couple can live separately but remain legally married. During a legal separation, a couple can discuss dividing assets, child custody, and support without getting a divorce. This allows the couple to live apart while still retaining some of the benefits of marriage, such as health insurance coverage or tax benefits.
How to Get a Legal Separation Without a Lawyer?
In California, hiring an attorney for legal separation isn’t necessary. Many of our clients choose our mediation separation services to assist with paperwork and offer guidance throughout the process.
What is the Difference Between Legal Separation and Divorce?
The family law system in California and all the cities within including San Diego, Orange County and Irvine provides two options: Legal Separation or Divorce.
This guide tackles some of the frequently asked questions we receive from couples and people exploring separation. Read this and check out our answers to many more frequently asked questions about California divorce.
How Does Legal Separation Work?
Legal separation is a court-recognized status in California. It allows couples to live apart while remaining legally married.
Unlike divorce, legal separation doesn’t end the marriage. It simply changes the legal status of the couple.
Legal separation can be a viable option for couples who wish to separate but have religious, financial, or personal reasons to avoid divorce.
Here are some key aspects of legal separation in California:
- It doesn’t terminate the marriage or domestic partnership.
- It allows for division of property and debts.
- It can determine child custody, visitation, and support.
- It can establish spousal or partner support.
Should I Choose Legal Separation or Divorce in California?
What’s the difference? The main difference is that a divorce is permanent, whereas a legal separation is temporary and can be reversed. We offer the following details to help clarify each option. Whether you pursue divorce or legal separation, we encourage couples to choose an amicable process called mediation. Mediation benefits your kids, assets, and mental health.
In California, a legal separation is an official court order just as is divorce. Legal separation is different from divorce in that the couple remains legally married but has completed a legal process in which they agree on division of property, custody, and support. The issues to be decided in fact are the same for California legal separation and California divorce.
Legally separated in California can provide a middle ground for couples who are not ready to divorce but need to live apart. However, it comes with its own set of financial considerations. Although couples have a court ordered separation judgment enforceable by the California superior court, because you are not divorced, you cannot remarry.
Benefits of a Legal Separation
- It allows you to live apart without formally ending your marriage.
- If your religion or beliefs forbid divorce, then a legal separation will give you the freedom you want without going through with a divorce.
- It allows you to retain some of the benefits of being married, such as being on your spouse’s health insurance plan, getting tax benefits, and getting government benefits like social security.
- In a California divorce, you can file for divorce if at least one of you has lived in California for six months or more. If you do not meet this condition, then a legal separation will allow you to live separately until you are eligible to get a divorce.
Other Key Differences between Legal Separation and Divorce
Another difference lies in the division of property. In a divorce, the marital property is divided and each party takes their share. In a legal separation, the couple can agree on a division of property, but the court doesn’t divide it.
Here are some other differences between legal separation and divorce:
- Residency requirements: Divorce requires residency in California for at least six months. Legal separation has no such requirement.
- Waiting period: Divorce has a mandatory six-month waiting period. Legal separation doesn’t.
- Health insurance: Some health insurance policies may continue to cover a spouse during a legal separation, but not after a divorce.
- Social Security benefits: Depending on the length of the marriage, a spouse may be able to claim Social Security benefits based on the other spouse’s record after a divorce. This is not possible during a legal separation.
- Religious considerations: Some religions prohibit or discourage divorce. Legal separation can be a viable alternative for adherents of these religions.
Financial Implications
The financial implications of a legal separation can be complex and challenging to comprehend. In order to complete the legal separation process in California, you need to know and understand the key financial aspects of legal separation, and to seek a legal separation attorney to offer insights into the benefits and drawbacks.
- Division of Assets and Debts: One of the primary financial concerns during a legal separation is the division of assets and debts. This process is similar to divorce and involves identifying and valuing marital property, which includes everything acquired during the marriage.
- Spousal Support: Spousal support, or alimony, may be awarded during a legal separation. The aim is to ensure that the lower-earning spouse can maintain a similar standard of living. The amount and duration of spousal support depend on factors such as the length of the marriage, the needs of the receiving spouse, and the paying spouse’s ability to pay. During the separation process, temporary spousal support orders can be issued to provide financial assistance until a final agreement is reached. These orders can be modified if circumstances change. If you remain living with your partner during or after the legal separation process, it is common to delay spousal support until you are no longer living together. This is because while living together, you likely continue to share costs and bills and if support commences, the recipient would then contribute a portion back to the joint costs. But there is not one way of handling this period of time and couples can work with a legal separation lawyer specializing in creative separation settlement agreements tailored to the needs of each client.
- Child Support and Custody: Legal separation also involves decisions regarding child support and custody. The financial responsibility for children typically falls on both parents, and the court will establish a child support order based on state guidelines.
- Custody Arrangements: Custody arrangements can significantly impact the financial situation of both parents. Shared custody may require adjustments to living arrangements and expenses, whereas sole custody usually involves child support payments from the non-custodial parent.
- Health Insurance: One of the lesser-known financial implications of legal separation is the effect on health insurance and other benefits. Many couples stay legally separated rather than divorce to retain benefits, such as health insurance coverage under one spouse’s plan.
- Employer Benefits: Employer Benefits may terminate for legally separated spouse. It’s essential to review employer policies, as some companies may not cover a legally separated spouse. In such cases, alternative health insurance options need to be explored.
- How Legal Separation Affect Tax Filing: Legal separation can also have tax implications. Couples should be aware of changes in their filing status, as they may need to file as “single” or “head of household” instead of “married filing jointly.”
- Tax Deductions and Credits: Changes in filing status can affect eligibility for certain tax deductions and credits. Consulting with a tax professional can help navigate these changes and optimize tax outcomes.
Is the Legal Separation Process Different than Divorce?
A divorce is the dissolution of a marriage; it is the permanent end of your marriage. Once divorced, you are legally single and you can remarry. You can no longer be on your spouse’s health insurance and you cannot claim tax benefits.
How Does a Legal Separation Work in California?
In terms of process, legal separated and divorced couples go through very similar processes, namely:
- File for legal separation (or divorce) with the court
- Exchange mandatory disclosures of assets and liabilities
- Agree on how the assets and debts will be divided
- Agree on spousal support and custody of children
- If you cannot agree to any of the above, a judge will hear your case and make the decisions for you.
How Long Can You Be Legally Separated?
There is no timeline or time restriction for legal separations. You can be legally separated for years or decades if you choose and both agree.
How do I get a California Legal Separation Process
The process of legal separation in California begins with filing a petition. This is done in the Superior Court of the county where you live.
Next, the other spouse is served with the papers. They have 30 days to respond.
If the spouse doesn’t respond, the court may grant a default judgment. If they do respond, the case proceeds to a hearing or trial.
The court then issues a judgment of legal separation. This outlines the terms of the separation, including division of assets, child custody, and support.
Crafting a Settlement Agreement for California Legal Separation
A separation agreement is a crucial part of the legal separation process. It’s a legally binding contract between spouses that outlines the terms of their separation.
This agreement can cover a wide range of issues. It can include everything from child custody and support to the division of property and debts.
Having a well-crafted separation agreement can help avoid disputes down the line. It can also make the process of legal separation smoother and less stressful.
What to Include in Your San Diego Legal Separation Agreement
When crafting a separation agreement, it’s important to be thorough. The agreement should cover all aspects of your shared life that will be affected by the separation.
This includes provisions for child custody and visitation, child and spousal support, and the division of property and debts. It’s also wise to include details about who will live in the marital home and how bills will be paid.
Remember, the more comprehensive your agreement, the less room there is for misunderstandings or disputes in the future. It’s always a good idea to consult with a legal separation attorney to ensure all bases are covered.
Benefits of Hiring a Legal Separation Attorney
A legal separation attorney can be a valuable ally. They can guide you through the legal process, ensuring your rights are protected.
They can also help you understand the implications of legal separation. This includes financial, tax, and insurance considerations.
Lastly, an attorney can help you negotiate a fair separation agreement. This can save you time, stress, and potential disputes down the line.
Choosing the Right Legal Separation Attorney
Choosing the right legal separation attorney is a critical step in the process. This professional will guide you through the legal maze and help protect your interests.
Look for an attorney who specializes in family law and has experience with legal separation cases. They should be familiar with California’s specific laws and procedures.
Remember, this person will be your advocate during a challenging time. It’s important to find someone you trust and feel comfortable with.
Questions to Ask Legal Separation Attorneys
When meeting with a potential attorney, come prepared with questions. This will help you gauge their expertise and suitability for your case.
Ask about their experience with legal separation cases. Inquire about their approach to cases like yours and their communication style. These questions can help you make an informed decision.
What Is Your Experience With Legal Separations?
A. Understanding an attorney’s background is fundamental. Ask about their experience specifically with legal separations, as this area of law has its own nuances and complexities. An attorney well-versed in legal separations will be more adept at handling your case efficiently.
Can You Provide References or Testimonials?
A. Reputable attorney should have no issue providing references or testimonials from previous clients. These can offer valuable insights into the attorney’s effectiveness, communication skills, and overall client satisfaction. Hearing about others’ experiences can help you gauge whether the attorney is the right fit for you.
Our founding attorney Scott Levin has the best reputation for legal separation services in San Diego. Scott leads our team at San Diego Divorce Mediation & Family Law and has earned more than 250 five star client testimonials for his mediation San Diego CA legal separation services.
Read our legal separation lawyer client reviews here!
How Will We Communicate Throughout the Process?
Effective communication is key to a smooth legal separation process. Ask the attorney how they plan to keep you updated on your case’s progress. Will they provide regular updates via email, phone calls, or in-person meetings? Clear communication channels will ensure you stay informed and can make timely decisions.
How Do You Handle Mediation and Settlement Discussions?
Mediation can often be a less contentious and more cost-effective way to resolve issues in a legal separation. Ask the attorney about their experience with mediation and their approach to settlement discussions. Their ability to facilitate amicable agreements can make a significant difference in the overall process.
San Diego’s Top Rated Legal Separation Lawyers
Need more information on the difference between legally separated vs divorced? Please contact our top rated mediation lawyer in San Diego at 858-255-1321 or email scottlevinmediation@gmail.com and let us know if you need help filing documents for a legal separation or a divorce.
If you are in search of an exceptional San Diego Divorce Lawyer with a specialization in mediation, look no further than Scott Levin. To initiate a consultation or to gain more insights into the legal separation process and our services, contact San Diego Divorce Mediation & Family Law to begin your journey towards a peaceful divorce resolution today.
