Divorce and Legal Separation

Divorce

Divorce, or “dissolution of marriage” as it is officially called in California, is the termination of a valid marriage between two parties. A Judgment of Dissolution completely and permanently severs the parties’ marital relationship and property rights, and returns them to the status of single persons.

Legal Separation

Legal separation, sometimes called a “limited divorce,” allows a couple to live separate and apart from each other as if they were divorced, but they remain married.  A Judgment of Legal Separation is nearly identical to a Judgment of Dissolution, except that it does not sever the parties’ marital relationship nor return them to the status of single persons, and neither party may remarry or enter a domestic partnership.

Why choose a legal separation over a divorce?  It depends on your situation.  Most couples overwhelmingly choose to divorce, but sometimes they choose a legal separation for reasons such as their religious beliefs, tax consequences or medical insurance benefits, or even because they are holding out hope for an eventual reconciliation of the relationship.

Date of Separation

Under California law, date of separation is a substantially different concept than legal separation. Date of separation is the date when there has been a “complete and final break in the marital relationship” between two parties, and requires that at least one spouse expresses to the other his/her intent to end the marriage, and then that spouse’s conduct is consistent with his/her intent to end the marriage.

Date of separation is an important concept in California family law, because it is that date after which the income, property and debts acquired by either spouse is no longer community property but is rather each spouse’s separate property.

No-Fault State

Under California law, the consent of your spouse is not required to obtain a divorce or a legal separation, nor does one spouse have to prove that the other is “at fault” for the breakup of the relationship.  The most common ground for divorce or legal separation in California is “irreconcilable differences” leading to the “irremediable breakdown of the marriage.”  In fact, in California it is inappropriate to even raise the issue of fault except in very limited circumstances, and even then the issue is not presented as an issue of fault, but rather more one of facts and consequences.

The “Six-Month Rules”

There are actually two six-month rules that apply in California divorce cases.

Six-Month Residency Rule for Divorce – a spouse can only file for a divorce if he/she has been a resident of the state for at least six months (and the particular county for three months).  The issue of residency is generally an easy one, but can be complicated in some situations, particularly for members of the armed forces. Members of the military stationed elsewhere may be able to file for divorce in California if they have designated this state as their permanent residence, continue to vote here or otherwise can demonstrate the intent to permanently reside in California. Members of the military are also protected under federal law from a divorce prosecution in California while deployed outside of the United States.

The residency rule does not apply in legal separation cases.  In fact, parties often will file a Petition for Legal Separation to start a divorce case when the divorce residency requirement has not yet been met, and then amend the Petition several months later once residency has been established.  This permits the court to get a head start on the issues, and can help the parties start the clock ticking sooner on the six-month waiting period.

Six-Month “Waiting Period” (aka “Cooling Off Period”) – once a Petition for Dissolution has been filed and then served on the other party, there is a waiting period of at least six months before the Court has the authority to actually terminate your marital status.  This does not mean you will automatically be divorced in six months, and may actually require a motion to be filed and a court hearing scheduled to determine whether the marriage should be terminated after six months.

Range Of Issues To Be Decided

In addition to marital status, the family court has jurisdiction to decide issues of child custody and visitation, child and spousal support (aka “alimony”), division of community property and debt, the need for domestic violence restraining orders and allocation of attorney fees and costs.  Moreover, same-sex marriage is now the law of the land, and all provisions in the California Family Code that apply to opposite-sex couples apply equally to same-sex couples upon marriage and divorce.

Contact us or call (925) 465-2500 or (707) 398-6008 for more information or to schedule an initial consultation at Sparks Family Law with attorney Gary D. Sparks.