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!
Monday, October 26, 2009
Friday, October 9, 2009
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.
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.
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