Orange County Legal Separation Lawyers

Posted By admin, On August 29, 2020

Deciding to get married is a pivotal decision that necessitates shared decision-making in most areas of life.  That can include everything from finances to child rearing. Making your way through these challenges can be tough even with the best of planning. At times, circumstances change dramatically after marrying.  Sometimes one spouse feels the need for a time-out, but isn’t yet prepared to dissolve the marriage. This can be accomplished as a legal separation, which may be permanent or it can precede a divorce. Legal Separation carries important legal consequences, depending on what state you got married and/or reside in.

Legal Separation Process in Orange County

In California, a legal separation doesn’t legally end a marriage or domestic partnership. Instead, it is the document that comes out of a court case in which the rights and responsibilities of spouses who want to live apart are determined. Although legally separated parties are still lawfully wedded, they can have the benefit of enforceable court orders splitting up their finances or directing the custody and support of their children. Also, they might be able to retain certain marital benefits, like health or life insurance.

The process of filing for a legal separation in Orange County is pretty much the same as that used for a divorce/dissolution. A spouse needs to file a petition and pay a filing fee.  They then must serve the petition on the other spouse, and also file financial disclosures with the court. That said, unlike no residency requirements are mandated for a legal separation.

Legal Separation Laws in the State of California: At A Glance

The list below contains the basics of legal separation laws in California.  These are also the bases for legal separation and the procedure to obtain a court order.

Statutes Covering Separation in the California Family Code 

  • Family Code Section 2310 (grounds for separation)
  • Family Code Section 2330 (process to initiate separation)
  • Family Code Section 2030 (requests for attorney’s fees for a separation)

Grounds for Legal Separation

Legal separation of the parties may be based on either of the following grounds:

Irreconcilable differences, which have caused the irremediable breakdown of the marriage; or

Incurable insanity.

Date of Actual Separation

No couple is legally separated until the court hands down a judgment. Nevertheless, the date of actual separation can have an effect on the parties’ rights and responsibilities, especially as pertains to community property. In California, an actual separation occurs where a spouse:

Expresses his or her intent to end the marriage; and

Engages in conduct consistent with an intent to end the marriage (i.e. moves into a separate residence).

In Orange County, is Legal Separation Required before a Divorce?

It is not. Nonetheless, the state of California does impose a 6 month “cooling off” period before a divorce order can be entered.

Note: State laws are always subject to possible changes by way of the passage of new legislation, rulings in higher courts ( federal decisions included), ballot initiatives, and other circumstances. Please consult a lawyer to verify the state law you are working with.

Are we legally separated if we’re getting a divorce?

Unless you have filed for a legal separation, you don’t have certain protections under the law until your divorce is final. You can be separated, physically, and living in different locations without being legally separated. You can also be legally separated while living in the same house.

What is Legal Separation?
Legal separation is a document that lays out your rights and responsibilities while you’re going through a divorce or physical separation of more than a few months. A formal separation agreement allows you a certain amount of legal autonomy while you’re going through a divorce. Without one, your spouse can drain your bank account or hinder your life in other ways, and you’ll have very little legal recourse.
At the bare minimum, your separation agreement should cover:
– Debt obligations and liabilities during the separation
– Division of marital assets, including cash and bank accounts
– Any child support, custody, and visitation agreements
– Responsibility for health, life, and auto insurance payments and coverage
– How retirement savings or pensions will be divided
– Any disclaimers or a document of forfeiture for separate property like inheritances
Legal separation can be the first step before filing for a divorce, but it can also be a legal agreement used in place of divorce.

Why File For a Legal Separation if You’re Not Divorcing?
Most couples divorce within three years of a legal separation. However, a small percentage choose to remain legally separated for years without actually divorcing. There are several reasons for choosing to remain legally married to someone even after your marriage is over. The most common are religious reasons, financial difficulties, military or Social Security benefits, insurance coverage, and tax advantages.
However, if you do choose legal separation, it’s important to take steps to protect yourself. Sit down with your spouse, or in a room with a mediator or lawyers if there are communication issues, and make some decisions. Any agreement should protect your interests and those of your children, whether or not you have physical custody.

Both of you should have a clear idea of where you stand financially as far as savings, assets, debts, and investments. Once you’ve obtained and filed a legally binding agreement, you should:
– Establish credit under your own name
– Close any joint bank accounts
– Close any joint credit card accounts

Drawbacks of Legal Separation
While it depends on the state you live in and how detailed your separation agreement, there are some disadvantages to not filing for a divorce. In many states, you can still be held liable for your spouses debts. He or she could rack up a ton of credit card expenses and leave you holding the bag. You may also decide that you want to remarry some day. There is also a feeling of being in limbo; you’re not really married any more, but not divorced. It’s also important to note that any child born to a woman who is still legally married is the responsibility of her legal spouse regardless of biological relationship.

Some people prefer to make a clean slate. The cost and many other factors of divorce and legal separation are the same. It’s up to you and your spouse to decide if the advantages outweigh the disadvantageous of staying legally married but leading separate lives in every other way.

How Long Can You Be Legally Separated?
Legal separation is indefinite but reversible. It may be an opportunity to gain some perspective and breathing space before deciding if you genuinely want to end your marriage. You may find that it is an ideal solution in your situation. If not, all of the necessary legal elements are already in place should you decide to divorce. The minimum legal time span between filing a separation agreement and filing for divorce is usually six months to one year, depending on the laws in your legal state of residence.

Are There Any Circumstances That Can Void a Legal Separation?
Some states require a couple to file a legal separation before they can divorce. However, this is not an option that is available in all states. In some, it isn’t required at all before divorcing. A legal separation is not applicable in common law relationships.
The separation agreement can be canceled or modified at any time, but this must be done in court. It can also be transitioned to a divorce if the minimum time period has been reached. There is a gray area in some states regarding sexual relationships between partners who are separated, whether legally or not, and planning to divorce.

If one partner contests the divorce or initiates encounters in order to reconcile, any overnight stays, trips together, or similar circumstances can be used to contest the official date of separation and delay the divorce action. The court will use two legal standards to determine if sexual contact meets the standard of reconciliation, thus voiding the agreement or re-starting the waiting period:
– Did the couple portray themselves publicly as a married couple?
– Was there a mutual agreement to reconcile?

Both of these instances would have to be proven to the judge.
If you have questions about your rights under divorce law, contact an experienced family lawyer who specializes in divorce and separation.