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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
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.
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
|Continue reading "WHY Should I Consider a LEGAL SEPARATION?" »|
|April 07, 2010 |
| When can I file for LEGAL SEPARATION in CALIFORNIA? |
|Posted By Thurman Arnold|
Q. Can I file for legal separation in California if I just moved here from Arizona?
In order to be entitled to file an action for legal separation, a spouse
does not need to be a resident of the State of California when they file;
this is not true for divorce. To be legally entitled to file a dissolution
proceeding here, you must either already be a California resident temporarily
living elsewhere, or you must have been physically present in this state
for at least six months.
For example, assuming Mrs. Smith from Idaho moved to California two months
ago and now wishes to dissolve the marriage in this State, she has not
yet met the California residency requirements for divorce and if she files
an action for dissolution it will be denied - especially if Mr. Smith
objects that she is not a resident of this State. But perhaps Mrs. Smith
is in immediate need of spousal support - she is fleeing domestic violence
by Mr. Smith who is a raging alcoholic - in that case, even though she
is not domiciled here and has not been here for at least six months, she
can file an action for legal separation and obtain temporary support orders
and possibly attorney fees against Mr. Smith, so long as there is a basis
for California to assume jurisdiction over Mr. Smith once he is served.
After the time has passed (6 months) for Mrs. Smith to establish her residency
here, she is entitled to amend to the Petition to now seek a divorce.
In the meantime, she has been protected. (While a California Court can
always dissolve a marriage, in order for property or financial orders
to be valid as against Mr. Smith, California must have jurisdiction over
him by way of his presence here at least at time of service, his consent
to jurisdiction, or other legally sufficient contacts with this state).
Please note, however, that Legal Separations can only be granted by mutual
consent, or where the other party fails to respond in the action and so
the Judgment is entered by default. Also, divorces filed in other states
trump legal separations filed in California for purposes of forcing you
back there to litigate if you spouse wishes to go that route.
Thurman Arnold III
For more information about legal separations, please click here.
|Continue reading "When can I file for LEGAL SEPARATION in CALIFORNIA?" »|
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|January 17, 2010 |
| What Is a LEGAL SEPARATION in California? |
|Posted By Thurman Arnold|
Q. What is meant by "separation" in California, and is legal
separation a good idea?
A. There are two contexts in which the word separation is used in divorce
and family law in California: (1)
Legal Separation and (2)
physical separation. Both are important, but in practice the concept of physical separation
has a far huger impact on people's lives.
A Decree of Legal Separation in California is identical for all purposes
to a Decree of Dissolution of marriage, with one critical distinction:
A judgment for legal separation leaves the marriage (and the marital "bonds")
intact. The parties remain married, and so neither can remarry. But for
all other purposes, the marriage is effectively dissolved.
There are religious and personal reasons why two people might want to
do this, and there are some practical reasons involving most notably health
insurance but sometimes job related benefits why two married persons might
choose this over divorce.
A decree of legal separation cuts off the creation of community property
thereafter, which includes liability for community debts as well. It is
possible to divide all property between the parties, to fix all rights
and entitlements to spousal support, and to deal with custody, visitation,
and child support issues, and yet remain legally married. It requires
the consent of both parties, because if either party objects to a legal
separation or seeks a dissolution instead, a Judgment of Legal Separation
cannot be granted. Even if the parties are in agreement concerning a legal
separation, neither is precluded from later seeking to terminate marital
status through a subsequent dissolution action. If the parties have reached
a legal separation agreement, or if the Court enters a Judgment of Legal
Separation, a subsequent action does not undo any of that.
This is a fairly unusual outcome. In my substantial experience, very few
parties have been in agreement on this way of resolving their joint affairs
and it doesn't usually make sense unless there are unique health,
insurance, or religious or familial reasons for not dissolving the marriage.
Need more information about the twists and turns of Legal Separation?
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