California Family Law Attorney
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November 21, 2010
  WHY Should I Consider a LEGAL SEPARATION?
Posted By Thurman Arnold, CFLS

Q. My Wife has filed for legal separation. Is this something that I should consider instead of divorce?


TIP: A Judgment of Legal Separation can only granted where both parties agree and so consent to it. Family Code section 2345. This means that you cannot be forced, over an objection for any reason, to accept that outcome. Still, if you fail to file a Response within thirty days after service of the Summons and Petition for Legal Separation, a default judgment for Legal Separation can be entered against you. Be careful to check the correct boxes on the Judicial Council Form FL-120, so that you don't inadvertently ask for one. DO check the box at left below the word RESPONSE, but be careful NOT to check the box to the right of the word RESPONSE ("and REQUEST FOR") so that it doesn't inadvertently look like you too are requesting it. However, even if you don't agree to it, while the case is pending courts can still issue orders for temporary child and spousal support.

My recommendation for a Petitioner (i.e., party who files first) who prefers a Legal Separation but isn't sure whether the other spouse or domestic partner will agree to it is to add the words "In the Alternative" in parentheses after the "Dissolution of Marriage" box in the caption of Judicial Council From FL-100. This assures that if you later learn they are objecting to a Legal Sep, the action will effectively become one for dissolution of marriage rather than possibly being dismissed entirely later for lack of this consent. Also remember, if you are the Respondent (i.e., the party who files second) and you don't want a Legal Separation but you do want a divorce, check the Dissolution box on the FL-120. In my experience, 75% of the petitions that begin as a Legal Separation are converted into dissolutions by reason of the 'request' boxes that the other party checks when answering the petition - meaning, if you want a Legal Separation, you may find yourself getting divorced instead.

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There are important advantages to proceeding with a Legal Separation instead of a divorce in some cases, and in my opinion they can be used as a forward thinking and respectful way to end a lengthy relationship in ways that may help the other party live with greater dignity and more financial options.

Unlike a decree of dissolution of marriage, the other party's consent and cooperation is necessary in order to successfully use this procedure. It is not uncommon for one party to file a Petition for Legal Separation only to receive a Response from the other party requesting a disso instead. Unfortunately, in my experience people who may not be talking at the time of break up miss opportunities to explore options that would serve them both better. Deciding how to respond to a Petition for Legal Separation, which occurs early on at the rawest point of breakup, is one of those moments where people have a choice to think bigger than what the hurt of separation usually allows.

A Legal Separation is in many ways identical to a Dissolution proceeding, with the defining difference being that parties to a legal separation remain married and registered domestic partners (RDP's) remain in a domestic partnership. The same laws and the procedures apply as with divorce. However, the advantages and disadvantages of legal separation vs. dissolution very much depend upon the facts and history of each particular case.

There are a number of good reasons for electing to file for legal separation rather than dissolution. These may be strategic, emotional, economic, and religious. Examples include:

  • Strategic Reasons to File for Legal Separation: In order to file for certain types of orders, like spousal support, an underlying action must be pending. Often this is a Petition for Dissolution. Where the requesting party has not met the jurisdictional requirement of having resided for six months in California, they are not legally entitled to file a divorce action. They are eligible, however, to file for Legal Separation and seek spousal support therein (and any other orders they could request in a Dissolution action).
  • Emotional Reasons to File for Legal Separation: Particularly in lengthy marriages and for elderly couples, Legal Separation may be a less traumatic way of disentangling the legal and economic affairs of people while preserving the symbolic value of the relationship. This may be a better fit for the participants and their extended family of children and grandchildren. Legal Separation can also be a transitional phase or stopping point that allows couples to try out the reality of a different kind of relationship.
  • Economic Reasons for Legal Separation: There are significant economic consequences that flow from dissolving the marriage itself. These are often seen in dealing with health insurance questions. Upon divorce most health insurance that covers a non-employee spouse ends after eighteen months from the date of judgment, and those eighteen months cost more each month than before. New insurance may or may not become available to a chronically ill spouse or one with significant pre-existing conditions. Legal Separation allows the existing coverage to be maintained, often at a tremendous savings relative to replacement insurance. Another common economic reason involves the ability to continue to claim the "married status" in federal and state income tax returns, which may benefit one or both spouses. Sometimes people who otherwise wish to remain married have to divide their income and estates in order to qualify for state or federal benefits. In order to collect Social Security benefits from the federal government on account of the other spouse's work history, a marriage must last at least ten years (the end of the marriage is defined by the termination of the marital status). Legal separation is a means to allow those ten years, which cost the working spouse nothing, to accumulate before the actual divorce takes place.
  • Religious Reasons for Legal Separation: Certain faiths, and many people, feel that marriage is a life long vow and find that serious consequences flow from the fact of divorce. These may include ostracism from one's religious community, or simply be a result of one's personal views.

By choosing to begin with a Legal Separation - even where it is temporary in the sense that one day the marriage will be completely dissolved in an action for dissolution - people can intelligently and quite compassionately protect and improve the other spouse's quality of life without it costing anything at all, or anything significant.

Thurman W. Arnold, III
Certified Family Law Specialist

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April 25, 2010
  What SOCIAL SECURITY BENEFITS may be paid to CHILDREN?
Posted By Thurman Arnold
Q. My former husband is very ill. If he dies, what Social Security Benefits may our two children be entitled to?


Social security benefits may be paid to children when one parent becomes disabled, retires, or dies. To be eligible, the child must be the contributing spouse's biological child, adopted child, stepchild, or a dependent grandchild and under the age of 18 or, if still in high school, under the age of 19 (unless the child is disabled).

The child must have one parent who is disabled or retired and entitled to SS benefits or have a parent who died after having worked long enough to have themselves qualify for benefits. A child may receive up to one-half of the contributor's retirement or disability benefits, or 75 % of the deceased parent's basic Social Security benefit (up to a family maximum).

If a stepchild is receiving benefits, and the contributing spouse divorces the child's parent, the stepchild's benefits will end the month after the divorce becomes final.

Social Security Disability Insurance (SSDI) provides benefits based upon disability. These benefits depend upon prior work and Supplemental Security Income (SSI). Disability benefits may be paid, if there are sufficient work credits, to blind or disabled workers, widows and widowers, or adults who have been disabled since childhood who are otherwise not eligible to qualify for benefits. The amount of the monthly benefit depends upon the Social Security earnings record of the worker.

SSI payments are based upon financial need to adults or children who are disabled or blind, have limited income and resources, meet certain living arrangement requirements, and who are otherwise eligible. Monthly benefits vary up to a maximum federal benefit rate, which is sometimes supplemented by the state.

Need more information about Social Security and support obligations?

Thurman W. Arnold III


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April 25, 2010
  What SOCIAL SECURITY BENEFITS are paid upon the DEATH of a SPOUSE after DIVORCE
Posted By Thurman Arnold
Q. What widow's benefits exist from Social Security if my former spouse dies?


In order to qualify for derivative widow (widower) Social Security benefits, a couple must have been married for at least 10 years and the contributing spouse must have been fully insured through Social Security at the time of his death (the contributor must have paid into the system for at least 40 quarters).

In order to qualify for widow benefits, a surviving divorced spouse must be at least 60 years of age (or at least 50 years if disabled), and not have remarried again before age 60.

To prevent a loss of survivor benefits a former spouse who is nearing age 60 and considering remarriage should delay the wedding until after their 60th birthday. However, remarriage doesn't preclude eligibility for disabled surviving spouses or disabled divorcing spouses who remarry between ages 50 and 59.

Unlike what is received by way of derivative benefits on account of a former spouses still living - which is 50%, upon the former spouse's death the derivative spouse is entitled to 100% of the benefits the former spouse was receiving. What a widow receives depends upon their age: This amount is between 70% at age 60 and 100 % at age 65.

Want to read more blogs about Social Security and the effects of divorce?

TW Arnold


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April 25, 2010
  SOCIAL SECURITY BENEFITS and REMARRIAGE for divorced spouses
Posted By Thurman Arnold

Q. I would like more information on my social security benefits in divorce if I remarry.


A divorced person may receive social security benefits in one of two ways: (1) upon retirement based upon that spouse's own contribution to the Social Security system or (2) as the spouse of a contributor, so long as the marriage was not dissolved before the end of ten years and the divorced spouse has not remarried (so-called "derivative benefits"). Persons entitled to either set of benefits receive the higher amount. Derivative benefits do not come out of the contributing spouse's pocket.

Derivative benefits depend upon the former spouse's eligibility for benefits (whether or not they receive them yet), which requires that the other spouse is at least 62 years of age and fully insured (having contributed to Social Security for 40 quarters and thus qualifying for full benefits). This fact is important for dependent spouses who are older than the contributing spouse. In order to receive benefits, the dependent spouse must be at least 62 years of age and unmarried.

In the dependent spouse does remarry, he or she becomes ineligible for derivative benefits from a former spouse. If he or she divorces again, they become eligible for derivative benefits again, including the new marriage so long as the marriage lasted for 10 years. In situations of multiple 10 year marriages, the dependent spouse is entitled to the highest benefits of a former contributing spouse. Qualifying remarriages include a legal marriage, common law marriages where recognized, and "deemed marriages" - where a person in good faith went through a marriage ceremony but the marriage somehow did not qualify as a legal marriage under the laws of a particular state.

Need more information about how divorce affects Social Security benefits?

T. Wesley Arnold III
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March 06, 2010
  BIFURCATION of MARITAL STATUS
Posted By Thurman Arnold

Q. If I have a California divorce case pending but there has been no final judgment, is it possible to terminate the marital status so that I can remarry?


Terminating Marital Status Before the Property is Divided Is Easy to Accomplish

California requires that at least six months elapse between the date that a Petition for Dissolution is filed and served upon the other party before the marital relationship can be terminated. Family Code section 2339. This can occur despite the fact that all other issues (support, custody, property division, etc.) remain unresolved or unadjudicated. The remaining issues in contested cases rarely get addressed that quickly, and the average litigated divorce case takes nine months to two years to conclude. Hence, many people find themselves desiring a Judgment for Dissolution on the soonest available date, even though the rest of the case remains pending.

There are a number of reasons why people may wish to obtain an early marital status termination. Sometimes they wish to remarry and at other times the fact that the marital ties continue between the parties may itself be a source of friction where, for instance, one party is in denial that the marriage is over. Terminating status might help the parties to move on emotionally, and so to come to agreement on issues relating to the "financial" divorce.

However, terminating marital status has some important legal and economic consequences and should be considered carefully. In order to obtain derivative Social Security benefits based upon the other spouse's employment, federal law requires the marriage be of at least ten years duration - counted from the date of marriage to the actual termination date for marital status. Once the marriage itself is dissolved, the time for becoming eligible for social security benefits ceases to run. It is inadvisable therefor to seek or to agree to an early termination of marital status if it has the effect of terminating the marriage earlier than the 10 year mark. Social Security benefits are not an asset that can be divided by state courts in divorce, and it costs the working spouse absolutely nothing to allow the other to spouse to perfect his or her interest in these benefits.

Moreover, while Family Code section 2337, which governs these applications, speaks in terms of a right of indemnity (i.e., reimbursement) in favor of a former spouse who suffers financial injury as a consequence of an early dissolution of the marriage, it is a very weak provision and it would require a lot of legal expense to enforce it.

Whether you should resist a bifurcation of status request may depend upon the length of marriage so far. For instance, if you are at the six year mark it is almost certain that the marriage will be dissolved before you reach ten years, and so an early bifurcation may not matter. If your marriage is already nine years old, chances are the case will not be completed before ten years are achieved.

Keep in mind, neither party is hurt by allowing the ten years to accumulate because Social Security benefits are not paid from the pocket of either spouse, but from the taxpayers' pocketbook. Allowing social security rights to mature hurts neither party but may be important to the interests of each - indeed, for a spouse paying alimony the receipt of social security benefits may actually decrease that obligation in the future since the receiving spouse has income.

Another common consequence of bifurcating marital status is the likely termination of health coverage. Almost all health insurance coverage will terminate upon divorce although federal law requires a transitioning period of between 18 to 36 months under COBRA regulations.

There are other important consequences as well. You cannot obtain the tax savings that is often available by filing a joint tax return (or 'married filing separately') because once marriage is dissolved, your filing status becomes "single". There can be very serious impacts on inheritance rights (whether by Will or by Trust) once the marriage is terminated. Where title to property was held in joint tenancy (giving each spouse the right to inherit the other's interest in such property upon death), that joint tenancy is severed by operation of law and so becomes a tenancy in common without survivorship rights once the marital status is terminated. There can be consequences to certain forms of retirement plans, and it is a good idea to first join any pensions that can be joined into the proceeding - in fact, joinder of applicable retirement plans is first required, and failure to have done this constitutes grounds for objecting to a "bifo".

A party seeking a bifurcation of status will be required to indemnify the non-requesting or resisting spouse from some of the so-called "bifo" consequences (i.e., the requesting party may be ordered to pay the costs of maintaining health insurance, often at increased COBRA premiums, until a Judgment issues on the entire case).

Often bifurcation requests are handled informally by way of a stipulation, thus obviating the need to actually file a motion in order to have a judge rule on the application. These stipulations track the requirements set forth in California Family Code section 2337. A sample form of Stipulation to Bifurcate marital status is provided here for illustration purposes only.

If your spouse is seeking a bifurcation to terminate the marriage, be sure these provisions are including in the both the Stipulation to Bifurcate and the Judgment of Dissolution.

If you do wish to bifurcate marital status, you must use Judicial Council Form FL-315. The burden of proof required to succeed is very slight, and the key case on the topic is Gionis v. Superior Court (1988) 202 Cal.App.3d 786. As a matter of interest, Dr. Gionis was married to John Wayne's daughter, Aissa. Still, they can successfully be opposed (and they should be) very substantial prejudice might result. As a practical matter, it is pretty hard to recover against the other party for injury that an early "bifo" may cause.

If you want to read more about terminating marital status, click here!

Author: Thurman W. Arnold, III


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