Lake Tahoe Family Law | Attorney Craig C. Weaver

LEGAL SEPARATION

Legal Separation vs. Dissolution of Marriage Proceeding

A legal separation is very similar to a divorce or dissolution of marriage proceeding in California. For the most part the applicable law is the same, the forms are the same, the filing fees are the same, and the judicial officer who will preside over your case will be the same. The main differences are procedural and the effect of the judgment at the end of the proceeding.

To file for divorce in California you must first have been a resident of the State of California for at least six (6) months and a resident of the county in which you file for at least three (3) months immediately prior to the filing of your summons and petition. However, there is no such jurisdictional requirement to file for legal separation. You need only to currently reside in California to file for legal separation.

This means that if you have not satisfied the jurisdictional requirements to file for divorce in California, you then have the option to file for legal separation and later amend your petition to a petition for dissolution of marriage once you have been in the state for at least six (6) months and the county for at least three (3) months. It is important to note that while you can amend a petition for legal separation to a petition for dissolution of marriage, you cannot go the other way. In other words, once you have filed a petition for dissolution of marriage, you cannot later amend your petition to change the character of the proceeding to that of a legal separation. Additionally, even if you file for legal separation, your spouse has the option to change the character of the proceeding simply by filing a response and requesting a dissolution of marriage. Strategically, if you do not meet the residency requirements to file for divorce in California, you can start the clock on the mandatory six (6) month waiting period for the entry of a judgment of dissolution of marriage by filing and serving a petition for legal separation and requesting a dissolution of marriage in the alternative and later amending your petition after residing in the state for six (6) months.

Assuming the character of a legal separation proceeding is not changed to that of a dissolution of marriage proceeding, then when the case is final and judgment is entered, the parties will continue to be married even though their rights and responsibilities concerning their children, property, and/or support have been defined by the terms of the judgment of legal separation.

Parties will sometimes pursue a legal separation as opposed to a dissolution of marriage for religious reasons. Additionally, under some health insurance plans, a judgment of legal separation will not terminate a spouse’s ability to continue and have coverage and receive benefits from his or her spouse’s plan. However, following a judgment of legal separation the parties cannot marry a new spouse since they are still technically married to their current spouse. Parties that have legally separated can still file for and pursue a judgement of dissolution of marriage at any time.

Call (530) 214-8700 today to schedule a consultation to learn more about the differences between a dissolution of marriage and legal separation proceeding and which option might be best for you.

Legal Separation vs. Date of Separation

There can often be confusion concerning the date of separation versus a legal separation. Parties are not legally separated until judgment has been entered in a legal separation proceeding. However, parties who live separate and apart and have manifested an intent to end their marriage and have acted on that intent may very well be separated and have a date of separation. The date of separation is important because it is the date that will be used to define community property rights. Dates of separation are used in both legal separation and dissolution of marriage proceedings and have the same applicability in each. With a few exceptions, there is a presumption that all property acquired from the date of marriage until the date of separation is community property. There is not a requirement for anything to be filed with the court or served on the opposing party to have a date of separation. The date of separation is a defining moment in time that the parties can relate back to where one or both of the parties manifested an intent to live separate and apart, to end the marriage, and then acted on that intent. In determining the appropriate date of separation, the court will typically look at each spouse’s living situation and whether or not the two of them were truly separated. Some of the factors the court may take into consideration include whether the spouses continue to live under the same roof, continue to sleep in the same bed, continue to hold themselves out to the public including family and friends as married or separated, continue to merge their finances and support each other, file joint or separate income taxes, engage in sexual intercourse with each other, date others, and, in general, whether their private conduct is consistent with those who have had a final and complete break in their marital relationship. When the issue of date of separation is litigated, the facts are everything. It is also important to note that dates of separation are malleable. As of today, a couple may be separated with a definite date of separation. However, if tomorrow they participate in couples counseling to attempt and reconcile and save the marriage, have a romantic dinner together, and engage in sexual intercourse, then that former date of separation is likely to have been erased. The California Supreme Court has stated that for there to be a date of separation the parties must be living separate and apart and that living separate and apart means the spouses are living in separate residences and at least one spouse has the subjective intent to end the marital relationship, as objectively evidenced by words or conduct reflecting a complete and final break in the marriage relationship. However, some justices have stated that there may be circumstances in which spouses could establish separate residences under one roof. Additionally, under some unusual fact patterns it is possible for spouses to have more than one date of separation. These types of cases are especially complicated because the decision that has to be made is whether or not there was only one date of separation, which is typically the last one, or whether there was more than one instance of the parties being separated from each other meaning property acquired during the various separation periods should be treated as separate property as opposed to community property.

Call (530) 214-8700 today to schedule a consultation to learn more about the legal separation process, dissolution of marriage, and/or the applicability of the date of separation regarding California’s community property laws so you are able to better understand your rights, responsibilities, and options moving forward.