What is a legal separation?

By: Attorney Jeffrey R. Sissung

I sometimes hear a potential client say, "I don’t really want a divorce. Maybe just a legal separation." The potential client’s understanding seems to be that a legal separation creates only a temporary condition pending a potential reconciliation; that a legal separation is somehow a "divorce lite." That understanding is not accurate.

A legal separation and a marital dissolution are similar in that both proceedings are actions to conclusively determine and settle the spouses’ property rights and financial responsibilities to one another and to their minor children. Both proceedings result in a final judgment on the issues of child and spousal support; child custody and visitation; and community property rights and obligations. In that sense they mirror each other. The critical difference between a marital dissolution and a legal separation, however, is that a judgment of legal separation does not terminate marital status. That is, in a legal separation, the parties remain married at the conclusion of the proceeding and are not free to marry another person. Each party remains free to obtain a subsequent "status" judgment to dissolve the marriage should either choose to do so, however, the issues decided during the legal separation process cannot be re-litigated.

Why choose a legal separation? People generally choose a legal separation over a marital dissolution for religious beliefs, tax purposes, or other personal reasons. In today’s difficult economy, spouses might seek a legal separation instead of a dissolution in order to retain eligibility for medical insurance that would otherwise be lost by termination of the marriage. This is obviously an important consideration where a party has a preexisting medical condition (for which new coverage would not be obtainable) or insufficient resources to procure replacement coverage.

People also frequently confuse the terms "legal separation" and "date of separation." Both have a distinct legal meaning. The date of separation, a critical date in both a legal separation action and a marital dissolution action, is the date on which the community estate is to be divided. A legal separation is a means of adjudicating marital rights and obligations, as set forth above.

Hope that helps clear up some confusion regarding the legal separation!

What is the "Six Month Rule" in California Divorce?

This is one of the most commonly misunderstood areas of divorce law in California. Some people believe it means you cannot file for divorce unless you have been separated for six months first. It does not. Others believe it means that your divorce WILL become final six months after it is filed. It does not mean this either.

The Six month rule is located at Family Code Section 2337 (www.leginfo.ca.gov).

What it actually means to parties is the soonest your divorce MAY become final is six months and one day after the Respondent (the party not initiating the divorce by filing) is served with the Petition (the paper used to start the divorce process). However, there are many other procedural hurdles that have to be overcome before your divorce can be granted in this time frame. Also, the six month rule only deals with the termination of the marital status, that is returning the parties to the status of single people. The six month rule has nothing to do with the conclusion or resolution of other issues such as child custody, child support, spousal support (alimony), or property division (www.coronalaw.com).

As a practical matter, most contested cases cannot possibly be finished in six months in their entirety, therefore, it is possible to file a Motion to Bifurcate the Marital Status from the other issues, allowing a party to become single before the final resolution of the remaining issues. This may allow a party to remarry, or simply cut the emotional ties to the failed relationship. This subject, however, has a series of conditions and concerns related to it which are the basis of another discussion.

For more information, contact us at pcdesk@coronalaw.com or at (951) 734-6371.

What do you do if you are not getting your support payments?

First thing you should do if your ex-spouse is not paying their support payments is contact an attorney right away. Also if they are not paying their child support payments you might want to contact the California Department of Child Support Services.

The following is a list of some of the remedies that might be taken.

Wage Garnishment
Many child support orders have a clause that allows you to garnish the wages of the paying parent once payments become overdue. If your child support order doesn't have this language, you can ask the court to add it to your order.

Either your attorney or a local child support enforcement agency can prepare and serve the paperwork for a garnishment on the nonpaying parent's employer.

Once the garnishment takes effect, the current child support and some portion of the overdue child support is taken directly out of the nonpaying parent's paycheck each pay period.

Attaching Tax Refunds
If the nonpaying parent is at least three months behind in child support payments, the Federal Tax Offset Program allows you to "attach" (take) the nonpaying parent's federal income tax refund.

You can find out more information by contacting your local or state child support enforcement agencies.

Contempt Motions
Another option might be to file a contempt motion against the parent who hasn't paid support, asking the court where the child support order originated to hold him or her in contempt for violating the child support order.

Hiring your own attorney is the fastest and most efficient way of processing a contempt motion.
In some states, local child support agencies will provide you with an attorney if you can't afford one on your own.

Your attorney will need the following information to file the contempt motion:

• A copy of the child support order
• The nonpaying parent's name, current address and social security number
• The nonpaying parent's driver's license number, if available
• The current employer of the nonpaying parent, if available
• A list of any real estate the nonpaying parent may own
• Identification of any professional licenses the nonpaying parent may hold
• A description of any previous efforts you've made to collect the past-due support

How do you get a move away order for out of state?

In order to obtain a move away order to relocate with the child out of state, the requesting party must submit a request to the court in order to do so. The court will consider the following:

• Have circumstances changed since the original order for custody and visitation was issued?
• Is the purpose of the move to prevent the non-custodial parent from having contact with the child?
• Is a move out of state going to be detrimental or beneficial to the child?
• If the parents have joint or shared physical custody, how much time has the child been spending with each?

The court does not answer these questions at just one hearing. In almost all cases, if the parties are not in agreement with the move, the court will order that a "730" evaluation take place.

This evaluation consists of thorough interviews conducted by a court-appointed professional, primarily, a psychologist. The psychologist will render a report at which time, he/she will make a recommendation stating that the move is either not in the child's best interest or that it is. The court will consider the recommendation and make a determination of the move as well. This process is not easily handled. It takes time and is costly.

Is there a bias towards women in family law courts?

Believe it or not I hear this question so many times. In fact many men feel that they have no chance at getting custody of their children. The truth of the matter is; No, there is not a bias towards women in family law courts.

The primary goal for all Family Law Courts is to always have the child/rens' best interest at mind, whether it be with mother or father. The court must and always assess the family situation and involves family mediators to give an unbiased recommendation as to determine where the child/ren will be best cared for.

This can be a tricky situation and it is recommended that if there is a custody dispute that you retain the services of a local child custody lawyer.

What is meant by Joint Custody and sole Custody?

Joint physical custody is when both parents have the child/ren an equal amount of time, if not, that the child/ren have two primary residences with both mother and father. With joint physical custody, both parents share in all responsibilities.

Sole physical custody is when the child only has one primary residence with either mother or father. The time share is not equal and the other parent is awarded visitation.

What is Legal custody?

Legal custody is when both parents share in all decision making for the child/ren. Both parents have a say-so as to the following:
-enrollment/dis enrollment private/public school and/or daycare
-participation in religious activities
-beginning/ending psychiatric, psychological, or other mental health counseling or therapy
-selection of a doctor, dentist or other health professional (except in emergency situations)
-participation in extracurricular activities
-out-of-state or out-of-country travel

Each parent must have access to the child/rens school, medical, and dental records and the right to consult with professionals who are providing service to the child/ren.

Each parent will be designated as a person the child/ren's school will contact in the event of an emergency.

Neither parent will change the last name of the child/ren or have a different name used on the child/ren's school,medical or other records without the written consent of the other parent.

For more information about all of your custody issues please visit my Family Law Website