When a couple decides to formally end their marriage or domestic partnership,
they have two legal
options available to them in California: legal separation and divorce.
Our qualified Orange County, California divorce lawyer can go over the
differences between the two and aid you in your decision.
Importance of a Court Decision
Some couples may think that if they are experiencing an amicable break
up of their marriage, there is no need to get the courts involved. However,
they often don't realize that without a court decision, one member
of the marriage may be unreasonably held liable for actions and / or debts
incurred by the opposite member.
Living apart does not constitute a legal separation. A judge's ruling is needed to officially divide assets and responsibilities
between the parties involved.
A judge can make decisions during a legal separation or divorce including:
- Matters of child support and custody
- Child visitation plans
- Spousal support
- Property division
- Debt responsibilities
Representation from our knowledgeable Orange County divorce attorney can
help safeguard your rights, maintain equitable finances and help see to
it that you are treated fairly.
A legal separation is a court matter that will decide the division of assets,
child care and custody, and financial obligations. Both parties involved
must agree to the legal separation. If a member of the marriage or domestic
partnership contests the process, then divorce is the only recourse available
for the petitioning party.
Couples may opt for legal separation instead of divorce due to a variety
of reasons. These may include religious beliefs or financial necessities
such as maintaining health, Social Security or military benefits.
Divorce in California
California is a no-fault state. As far as the legal system is concern,
there is no guilty party with regards to dissolution of marriage or domestic
partnership. Either spouse may file for divorce citing irreconcilable
differences. Both parties do not have to agree to the end of the marriage
or domestic partnership in order for a divorce decree to be issued.
Official Date of Separation
A main component of legal separation and divorce is an official date of
separation. Once this date is established, parties are typically sheltered
from financial liabilities of the opposite spouse. Conversely, any new
assets accrued are shielded from property division. A binding premarital
or postnuptial agreement, however, may override some of these protections.
A skilled divorce lawyer, such as
W. Douglas McKeague
, can assess your situation and provide you with advice on what's best
for your situation.
Legal separation vs. divorce – Which one is right for you?
Deciding upon which way to legally dissipate your marriage or domestic
partnership depends on an assortment of factors and qualifications. Understanding
the key differences between them can aid you in making your decision.
Residency requirements: One of the spouses must have maintained residency in California for at
least six months to file for a divorce. If either party is unable to meet
this requirement, they must file for legal separation. Either spouse may
file for an "amended petition" requesting a divorce once their
time of residency has been accrued.
An exception to this requirement is made for same-sex couples who married
in California, but do not currently live in the state. If their current
state of residence will not dissolve their marriage, then the couple may
file for divorce within the county in which they were married.
Benefits Coverage: A party in a legally separated couple may still qualify for coverage under
their spouse's health care plan. They may also be eligible to receive
certain military and Social Security benefits. If a couple is divorced,
these benefits will most likely no longer apply.
Waiting Period: Divorce in California requires a six-month waiting period before the decree
can be issued. There is no such delay for legal separation.
Marrying Someone Else: If an individual wishes to marry another party, they must be divorced.
You cannot marry someone else if you are legally separated.
Tax Status: A couple that is legally separated, must still file as a married couple.
Oftentimes, they will choose "married filing separately" as
their tax status. Divorced couples can no longer file joint returns.
Making the Big Decision
As you most likely have surmised, the choice between legal separation and
divorce is a big decision. Having the counsel of our experienced divorce
attorney can be an advantage when navigating through this decision and
subsequent legal proceedings. At the Law Offices of W. Douglas McKeague,
we can provide you with our Orange County divorce attorney dedicated exclusively
to family law.
Contact us today for your
free case evaluation