Contemplating legal separation?
Let's talk about the nuts and bolts
What’s the difference between Legal Separation, Divorce and Annulment?
In a divorce, the court terminates your marital status (declaring you no longer spouses), which then significantly affects your tax filing status, health and life insurance (if you are on your spouse’s insurances as a “spouse,” that terminates and almost always cuts off your insurance benefits), among other effects. At your request, the court will also divide your property and debts, and issue orders relating to child custody, visitation, child support and spousal support, and, if necessary, a restraining order. If you are able to settle the case out of court, most of the time you can get the judge to sign off on a settlement agreement without having to appear in court.
You may have religious, insurance, tax or other reasons for wanting a legal separation instead of a dissolution (divorce). If you obtain a legal separation, you and your spouse will remain married, but the court can divide your property and debts, and issue orders relating to child custody, visitation, child support and spousal support. Just like a divorce case, you can also settle your legal separation by working with your spouse to come to a settlement agreement.
If you are granted an annulment, it is as though your marriage never existed. You may be able to get an annulment if you married when you were a minor without the consent of your parents or guardian, or if certain types of fraud or deceit were involved. Note that fraud and deceit are typically very difficult to prove, and the evidentiary requirements are very high. If you want an annulment you will have to appear in court for a trial.
What are the grounds for legal separation in California?
In California, there are two grounds:
1. Irreconcilable differences. There is no “proof” required to get legally separated on this ground.
2. Incurable insanity (almost never used). The court requires medical proof that one spouse was insane when the legal separation petition was filed, and proof that the spouse remains incurably insane.
What are the residency requirements for legal separation?
There are no residency Requirements to file for legal separation.
Are there rules that my spouse and I must follow during the Legal Separation process?
Yes. There are temporary restraining orders (rules prohibiting both of you from doing certain things) that go into effect automatically when the Legal Separation process begins. Lawyers refer to these rules as the “ATROS” – Automatic Temporary Restraining Orders. The ATROS are printed on the back of the Summons (a document that goes with all the other divorce/legal separation papers required to start a divorce case).
Under the ATROS, neither of you will be allowed to take your minor children out of state without the other spouse’s written permission or a court order. Nor will either of you, in most instances, be allowed to cancel or change the beneficiaries on your insurance policies or transfer property. And you will be required to notify your spouse before any out-of-the-ordinary expenditures are made—and be prepared to account for such expenditures to a judge.
After my legal separation papers are filed with the court, can I serve my spouse with the papers?
No. Copies of the Petition and Summons, and a blank Response, must be officially delivered (“served”) to your spouse by someone other than yourself who is over the age of 18. We use certified process servers to accomplish this task, because they know the technical rules for service, and are very good at dealing with people who try to evade service.
What happens after the legal separation papers are served?
The Summons is a paper that notifies your spouse that you are filing for a legal separation, and that he or she has 30 days in which to file the Response. In the Response, your spouse then indicates what needs to be resolved by the court. For example, he or she might object to your request for spousal support or sole custody of your children.
After the initial papers are filed, one or more of the following steps may occur:
You will have to complete disclosure declarations that provide information about your income, expenses, assets and debts (Income and Expense Declarations and Schedules of Assets and Debts). These will be served on your spouse. The court will later require proof that your disclosures were served on your spouse. There are two phases of disclosure: The “Preliminary Declaration of Disclosure” done at the beginning of the case, and a “Final Declaration of Disclosure” done just before trial or settlement. If the case goes on for a protracted period of time, sometimes an “Updated Preliminary Declaration of Disclosure” will be necessary.
You or your spouse may ask for a hearing so that a judge can decide any temporary child custody, visitation, support, requests for attorney’s fees or restraining order disputes. Such hearings are called Request for Order (“RFO”) hearings. These orders are considered “temporary” because they are made after the case has been initiated, but prior to settlement or trial.
“Stipulation and Order” Agreements:
These are negotiated, short-term agreements on issues for temporary orders such as custody, visitation, support, and the appointment of a neutral expert to evaluate the value of an asset (like a business). A “Stipulation and Order” states the interim terms agreed to by you and your spouse, and is signed by all the parties, the lawyers and signed off by the judge. When the judge signs it, it becomes an official order of the court. We try to get Stipulation and Order agreements where possible, to eliminate the expense of a court hearing on the issues.
If you are unable to reach an agreement, we will request a trial date. When we go to trial, you and your spouse will appear in court, we will present witnesses, your testimony and all relevant evidence, and the judge will make the decisions.
We work on permanently resolving the issues raised in your case. If an agreement can be reached with your spouse, a comprehensive settlement agreement will be drafted, called a “Marital Settlement Agreement” (also referred to as an “MSA”). Most of the time with an MSA, you do not have to appear in court, and a judgment based on your agreement can be entered.
A judgment can be entered at any time, but you would not be legally separated until at least six months after your spouse was served with the Petition.
Not all of the steps above will be necessary in every case. For example, you may simply reach an agreement and get a judgment without the need for temporary orders of any kind.
If your spouse does not file a Response, we may request a default and proceed to a default hearing to obtain a judgment. We will be asking the court to enter a judgment consistent with the requests in your petition.