Puja Sachdev | November 4, 2021 | Family Law
In the state of California, there are three ways to end a marriage: divorce, annulment, or legal separation. All of these methods require spouses to fill out and file several forms.
Legal separation is the only option that does not fully and permanently dissolve the marriage. Though many of the same things happen in a separation and a divorce, specific legal obligations and protections stay in place with a separation.
Separation vs. Divorce: What Are the Differences?
Whether you choose to divorce or legally separate, you will go through the process of dividing assets and debts. If there are minor children to consider, you will decide on custody and support arrangements. You’ll also make decisions about alimony, where each of you will live, and so on.
The major difference between a divorce and a legal separation is that you remain legally married after a separation. As such, benefits such as life insurance, military support, and immigration status remain in place.
Taxes must also be filed as a married couple, whether jointly or separately. If either spouse dies while the separation agreement is in place, the other inherits all benefits that they would have been entitled to if the couple had been happily married.
Some couples mistakenly believe that physical separation is the same as legal separation but that is not the case. The date that you physically separate is important for knowing when assets and debts become individual items. The date of legal separation refers to the date upon which the court approves the petition.
When couples file for separation, both parties must agree to separate. The court will not approve legal separation on one person’s behalf unless the other party declines to respond to the petition at all.
This is different from divorce, in which either party can file, and the court does not require the other side to agree.
Why File for Separation?
The state of California requires that you live in the state for a full six months before filing for divorce. You’re also required to live in the same county for three months.
If either party recently moved from out of state or from another part of the state, they will not be able to get divorced. Getting legally separated allows the couple to begin the separation process while waiting for enough time to pass to file for divorce.
Consider Summary Dissolution
Summary dissolution is an option reserved for married couples who meet certain qualifications.
- Be married for less than five years
- Have no children
- Have few or no assets or debts
If the marriage is relatively recent and parties have few legal attachments to resolve, a summary dissolution may be an option to explore.
Consider Hiring an Attorney
While the state of California provides step-by-step instructions to help you file for legal separation, the process can be quite complicated when there are many assets and debts tied to the marriage.
A postnuptial agreement can help you decide how to divide everything amicably after the marriage, but prior to separation or divorce.
Assets that can be addressed include:
- Bank accounts
- Stocks and bonds
- Retirement accounts
- A business
- Cash-value life insurance
- Furniture and furnishings
- Utility and rental deposits
A legal professional can help you to create a postnuptial agreement to protect your interests in the event of a divorce.
Forms to File for a Separation
The legal separation process is the same as the divorce process in California. You fill out several different forms and submit them to the court. The first form is the petition for separation. The next is known as the summons. This one will tell you and your partner what is and isn’t allowed with money, assets, children, and residency, among other things.
If you have minor children, you will also fill out forms regarding custody, visitation, and support.
In San Diego, you are also required to fill out a venue form, which states that you’re filing the forms in the proper venue (location), based upon where you live.
If you have legal counsel, they will lead you through filling out and submitting all of the proper forms, making sure that each party has copies.