Can I Seek a Legal Separation Instead of Divorce?
If you are having problems in your marriage, and you and your spouse are considering separating, you may have questions about your legal options. Unlike some other states, the California Family Code allows for both legal separation and divorce. Recognizing that state law permits both, you may be wondering if you can choose to proceed with legal separation instead of divorce with the assumption that it will be simpler and faster for your family. There are many misconceptions about legal separation versus divorce under California law, and it is important to understand what each can and cannot do.
While you can seek a legal separation instead of a divorce, the result might not be what you ultimately want and you may want to move forward with a divorce instead. Consider the following information from our San Jose divorce and family lawyers, and then get in touch with an advocate at our firm to discuss the details of your case.
What is a Legal Separation?
Under California law, legal separation does not result in a termination of marital status. Married spouses can seek a legal separation instead of a divorce if they are comfortable remaining legally married but want to have the court divide community property, handle family, spousal, and/or child support issues, and/or formalize child custody or parenting time. These are issues that a court will also address during a divorce, and therefore a legal separation may require the same amount of time as a divorce, depending on the circumstances.
Why would someone choose a legal separation instead of a divorce? There are different reasons, and some are personal. In some cases, spouses might want to avoid a divorce for religious reasons or certain personal or family reasons. Continued access to certain benefits, such as health insurance, retirement benefits, or tax positions, may be a consideration as those benefits may be affected by a divorce terminating marital status. In other situations, the residency requirement may not yet be met under Section 2320 of the California Family Code, which must be met before divorce proceedings can occur.
How is Legal Separation Different from Divorce?
Determinations about the division of community assets and debts, child and spousal support, and parenting responsibilities can all be formalized in a legal separation case. However, the spouses will remain legally married, which means that they cannot remarry even if the legal separation is finalized. They will still have legal obligations and ties associated with their legal relationship. If you want to be able to remarry, you will need to have a divorce finalized that terminates marital status.
A legal separation can often convert to a divorce later if one or both spouses want to terminate marital status. For example, if the spouses have not met the residency requirements and thus choose legal separation, they can later move forward and amend their case to seek a divorce once residency requirements have been met.
Contact Our San Jose Divorce and Family Law Attorneys Today for Assistance with your Case
Understanding your options when it comes to legally extricating yourself from your marriage can be confusing, especially given the possibility of both legal separation and divorce under California law. There are many reasons that married spouses may choose legal separation over divorce, but as we discussed above, divorce may be preferable depending on the desired outcome. Whether you have questions or you want to find out more about moving forward with a legal separation or divorce proceeding, you should get in touch with an experienced San Jose divorce attorney at Foster Hsu, LLP. We can assist you with all aspects of your case, from the division of community property to matters involving custody and minor children from your marriage. Contact our firm today for assistance.
Source:
codes.findlaw.com/ca/family-code/fam-sect-2320/
