Legal Separation

Many San Diego couples elect to file for legal separation instead of filing for divorce. A legal separation can provide the parties with some legal distance while one or more spouse decides if divorce is the best option for him or her. Through the legal separation process, the court has power to make orders regarding property division, child sharing and support. One important consideration in a legal separation proceeding is that, unlike in a divorce proceeding, both spouses must agree to the legal separation. If both spouses do not agree to proceed with the legal separation, a legal separation becomes a divorce proceeding.

Unlike in a California divorce proceeding, there is no requisite waiting period to obtain a legal separation. If a spouse files for divorce, there is a minimum six-month period that must elapse before the parties are permitted to terminate his or her legally married status. In the alternative, if a party files for legal separation, he or she can obtain a judgment as quickly as the court can process the paperwork. However, the judgment for legal separation does not entitle either party to remarry because the marriage is still valid. After the petition for legal separation is filed, many parties elect to file for divorce at a later date. This strategy is completely permissible, however it results in more court filing fees.

Filing for a legal separation can provide the parties with a number of financial benefits. The six-month waiting period in divorce proceedings can have a big effect on the tax consequences of divorce. Unless the divorce petition is filed six months before December 31, the parties will have fewer tax options. Legal separation is often used as a tool to meet ten-year marriage requirements for Social Security purposes or military pension benefits.

In order to file for divorce in California, one of the parties must meet the residency requirement. The residency requirement permits a party to file for divorce in California only if at least one spouse has resided in California for a minimum of sixth months. There is no such residency requirement in a legal separation. Thus, filing for legal separation is a tool often used to start separation proceedings while the parties wait out the six-month requirement and later file for divorce.

A legal separation is a serious family law proceeding and should not be used if the couple is simply seeking a “trial separation”. If you hope to reconcile with your spouse, filing for legal separation may not be appropriate. If neither spouse intends to remarry, a legal separation can be appropriate in situations where divorce is against either party’s religion. This option will provide the spouses with the ability to separate their assets and obtain custody and support orders.

If you are considering a divorce or legal separation, Andrew J. Botros or Matthew S. Blado will work with you through the process to find the solution that best suits your particular circumstances. Our team of experienced attorneys is prepared work zealously to provide you the legal representation that you need. If you wish to schedule a consultation with Andrew J. Botros or Matthew S. Blado, call us at (858) 793-8884.