What is a Divorce?

A divorce is the process of terminating married persons so that they can return to being single persons. This allows a person to remarry. A divorce can involve one of seven issues or all seven. The seven issues are (1) status (2) child custody (3) child visitation (4) child support (5) division of property rights (6) spousal support and (7) attorney's fees and costs.

In order to obtain a divorce in California, you must have lived in California for 6 months prior to filing a petition for dissolution and 3 months in the county which you filed the petition. In other words, to file in Orange County, you must have lived in Orange County for 3 months and in California for 6 months. This issue is called jurisdiction and is explored further here.

What Is Legal Separation?

A petition can request one of three reliefs. A spouse can ask for dissolution of marriage, legal separation or annulment.

A legal separation proceeding is distinct in that the only issue the Court does not decide is status. Status is returning a person to being “single” so they can remarry. In other words, you will continue remain married to your spouse, but decide the other issues in a divorce case.

Most people say they are “separated” from their spouse for purposes. However, a legal separation is much different than the term “separation” or “date of separation” which is the date that a complete and final break in the marital relationship has occurred. This is date is important in the determination of important property rights, including separate property and community property.

While the date of separation is important for purposes of a legal separation in order to determine property rights, a legal separation effectively separates all the rights and obligations spouses have toward each other. This includes dividing property, issuing support orders, and determining custody rights and visitation rights for the children.

In order to obtain legal separation, both parties must agree to having a judgment of legal separation entered by the court. Otherwise, if one spouse files a petition requesting a legal separation of their marriage and the other spouse files a response and requests a divorce, the court must grant the divorce. A party has a right to be divorced from their spouse and there is a strong public policy in California to not require spouses to be married to each other any longer than the 6 months and 1 day rule.

So if a legal separation requires both spouses to agree, why would anyone ever file a petition requesting legal separation? There are generally four reasons. The most common reason to request a legal separation is a strategic approach to the case. In California there is not a residency requirement prior to filing for legal separation. For comparison, a request for a divorce requires the spouse to have lived in California for 6 months and the county for 3 months prior to filing. Thus, if one of the spouses has moved from to the county recently it may be a strategy to request a legal separation in order to start the process and then amend the petition to request a divorce.

Another reason that we see people requesting a legal separation is to maintain certain benefits, including staying on your spouse's health insurance plan, tax benefits and receiving government benefits such as social security. The third reason people choose legal separation over a divorce is because their religion or personal views and beliefs rule out divorce as an option.

Finally, spouses may not know that they want to divorce and want to live apart. In doing so, they may also want to clearly define financial, property and co-parenting obligations while they determine whether a divorce is the best option for them.

If a party asks for legal separation and obtains a judgment of legal separation does that prevent them from getting divorced? The answer is no. They can always file another petition requesting dissolution of their marriage. Usually, in this circumstance the only issue left for the court to decide is status because all other rights have been determined in the judgment of legal separation. In other words, the court just needs to return you to being a single person and officially divorcing you. You cannot remarry if the only enters a judgment of legal separation. In the eyes of the law, you are still married until the court takes status and returns you to a single person.

You may also be interested in: