If you find yourself facing the breakdown of your marriage, you may be wondering whether divorce or separation is the right next step. During a sensitive and often confusing time, it can be difficult to make the choices that will best protect your finances, your property rights, and most importantly, your family relationships. Legal separation and divorce can appear quite similar from the outside, but there are differences in the filing process and the finality of each option. Understanding the differences between divorce and legal separation is critical to making the best decision to achieve your desired outcome.
California’s legal system can often be complex and challenging to understand without guidance from an experienced family law attorney. Fortunately, the Ventura divorce attorneys at The Law Offices of Bamieh & De Smeth, PLC are available to provide you with friendly support and aggressive representation to help deliver clarity and confidence during this difficult time.
Divorce vs. Separation—Legal Effects
There are many reasons why a couple may choose to pursue a legal separation in California rather than a divorce. A legal separation can be used as a probationary measure, with one couple taking it in hopes of eventually repairing their relationship. Financial and religious factors may also play a role in delaying or avoiding a divorce. It’s important to note, however, that most couples in California receive no real benefit from choosing legal separation, aside from the potential to hasten the divorce process.
Legal separation also comes with pitfalls that divorce does not. The most notable caveat is that you’re still married. Without obtaining an official divorce decree, you’re not free to remarry or enter into a domestic partnership. Inheritance rights may also cause a problem. Legal separation does not always terminate either spouse’s right to receive health insurance benefits or to inherit from the other. Section 6122 of California’s Probate Code does not provide any alternative provisions for separated spouses; in fact, it expressly states that “a decree of legal separation which does not terminate the status of husband and wife is not a dissolution” for the purposes of inheritance. If this is a cause for concern for you, it may be wise to include a provision in your will that upon legal separation or divorce, your spouse will not retain inheritance rights.
Obtaining a decree of separation does come with benefits, however. Similar to a divorce decree, issues of custody, visitation, and property distribution can be addressed.
Requirements and Procedures for Divorce and Separation
California is a no-fault state, meaning that a spouse filing for divorce or separation no longer has to provide the court with a fault-based ground for divorce, such as adultery, abandonment, or abuse. Rather, a spouse has the choice to assign irreconcilable differences or the incurable insanity of their spouse as the reason for the dissolution. Divorce in California requires at least 6 months' residency, while separation does not. After filing for divorce, you must also wait an additional six months before your divorce is final. Separation is effective immediately.
To file for a legal separation in California, both parties must consent. The spouse who chooses to file must provide a legal ground for the separation, as in a divorce petition. As discussed in the context of divorce above, Section 2310 of the California Family Code states that legal separation must be based on either incurable insanity or irreconcilable differences causing the irremediable breakdown of the marriage. Several additional forms must also be completed and subsequently filed with your local county court. If the spouse who is served with the initial filing does not consent and files an objection, the filing spouse will be forced to pursue a divorce. Keep in mind that the California legislature also provides for a summary divorce—a simpler option than separation or regular divorce. You may qualify for a summary divorce if you have no children, own no real estate, have limited assets and debts, and have been married for five years or less.
Converting Legal Separation into Divorce
Under California law, a couple who has already begun the process of obtaining a legal separation can, at any time, convert their separation to a divorce. In this sense, legal separation can be used as a step toward divorce. Since couples are required to wait 6 months for a final legal divorce, filing for a legal separation can start the waiting period. Many courts allow amending a legal separation into a divorce petition at no additional charge.
California Divorce Attorneys
The process of filing for legal separation or divorce can be quite challenging and overwhelming, especially if you are seeking a high asset divorce. Bamieh & De Smeth, LPC, have helped hundreds of couples in California with their divorces and legal separations. If you are separated and need help understanding your legal rights, or if you are seeking a divorce, talk to an attorney right away. When you are represented by the California family lawyers of Bamieh & De Smeth, we make your case our priority. To set up a free and completely confidential legal consultation, call our law offices today at (805) 643-5555.
