What is a Legal Separation in California?

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There are three ways to end a marriage or registered domestic partnership in California: dissolution of marriage (or divorce), legal separation, and annulment. Legally speaking, the only difference between a divorce and legal separation is that you cannot remarry your ex-spouse after legal separation. Unlike divorce, a legal separation does not put an end to the marriage, it enables you to live separately but remain married. During the time you are living apart, you have a court order that outlines the rights and responsibilities of each spouse.

Why Would Spouses Want Legal Separation?

An individual or a couple may have religious, insurance, tax, or other reasons for preferring a legal separation over a dissolution. For example, a couple might choose legal separation over dissolution because legal separation is recognized only by family court (as opposed to the government or your employer).  Additionally, legal separation allows for the retention of medical benefits and certain other benefits that divorce would bring to an end. For the legal separation, the court can divide a couple’s property and issue orders relating to spousal support, child custody, child visitation, child support, and if necessary, restraining orders. Since the government does not recognize legal separation, you and your spouse will remain married in the eyes of the government.

Residency Requirement

The state of California does not have a residency requirement to file for legal separation. Unlike a divorce (absent the completion of certain paperwork), you and your spouse can obtain a legal separation even if you have not lived in California for 6 months or in your county for 3 months before filing the petition.

How to File for Legal Separation

1. File the Proper Forms

Whether you are filing for dissolution or legal separation, you have to fill out the same forms with the same grounds available for dissolution or legal separation. The grounds to file for legal separation in California are irreconcilable differences and incurable insanity.

As the petitioner (the spouse to file the first petition with the court), you must fill out and file with the court clerk a “Petition-Marriage” (form FL-100) and a “Summons” (form FL-110). If there are children from the marriage, you must also fill out and file a “Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act” (form FL-105).

2. Serve the Forms

Someone over the age of 18, other than you, must officially deliver (“serve”) copies of the Summons and Petition noted above, along with a blank “Response-Marriage” (form FL-120), to your spouse (the respondent). That person must then file a “Proof of Service of Summons” (form FL-115) with the court telling when and how the respondent was served.

The respondent has 30 days to file and serve a “Response.”

3. Disclose Financial Information

Within 60 days of filing the Petition, the petitioner must fill out and serve the respondent with a “Declaration of Disclosure” (form FL-140), “Income and Expense Declaration” (form FL-150), “Schedule of Assets and Debts” (form FL-142), and “Property Declaration” (form FL-160), along with tax returns from the previous two years. If the respondent files a Response, he/she must also complete and serve the same disclosure documents on the petitioner within 60 days of filing.

These disclosure documents do not need to be filed with the court. However, if you decide not to do so, both you and your soon-to-be-ex must file a “Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration” (form FL-141) with the court to say that the disclosures were served.

If the decision to divorce is made, the legal separation agreement can be converted into a divorce settlement agreement, which you can discuss with an experienced divorce lawyer in Los Angeles.

For more information on the differences between a legal separation and a divorce in California, and to discuss which option is best for you, contact the family lawyers at Walzer & Melcher today.

Walzer & Melcher. Exclusively Family Law.