Palm Springs Separation Expert
What Is Physical Separation and Why Should I Care?
Physical and legal separation are two distinct and mostly unrelated concepts
in California family law.
Physical separation describes the end of the relationship, as established by way
of concurrent intent and conduct. Physical separation is a key issue in
divorce because California community property law presumes that all property
acquired between the date of marriage and separation is joint property.
This is because by operation of law the time, skill, and efforts of each
spouse - and the goodies (or debts) that are accumulated with it - are
community property, with each spouse owning one-half of an undivided whole.
This is set forth in
Family Code section 760, and is known as the "time of acquisition" rule. It is not the
date of a divorce decree, or the termination of marital status, that ends
the on-going creation of CP. For instance, your marriage cannot be dissolved
earlier than 6 months from the date of service of a summons and petition
for dissolution. But, obviously, you would not want your soon to be ex
to continue to share in your earnings if you'd decided to end the
marriage 6 months and a day before.
Physical separation is also integral to determining the length of marriage
for purposes of rights and obligations relating to spousal support. For
instance, as is discussed extensively elsewhere on this site, marriages
of less than 10 years are considered of short duration, with a support
exposure generally equally to no more than half that length.
Physical separation is a factual question and often is hotly disputed in dissolution cases
because of the significant financial consequences that flow from it. Upon
separation earnings and accumulations, and debts, belong to the party
who generates them.
Physical separation is not dependent upon the filing of any legal action
although it may include a filing for Dissolution of Marriage or Domestic
Partnership, or a Petition for Legal Separation (indeed, it is often evidenced
by such a filing). Physical separation is a consequence of two people
establishing two different households with an intention to continue with
their lives, separately, and on their own. However, as you can imagine,
people don't always move into two different addresses - sometimes
for kid reasons and sometimes because they cannot afford to. In those
situations, there can be expensive litigation to determine whether and
when a physical separation occurred. This is really a fraught area of
the law, and it recently changed.
Here's a Blog Article Mr. Arnold wrote that explains the issues in
great detail. Also,
visit our Blog for other articles explaining physical separation and what
conduct does and does not establish it.
In some cases, spouses may wish to separate in order to take a 'time-out'
to make a decision about whether to go through with a divorce sometime
later. It can give each spouse the breathing room they need to rethink
their future together. However, if spouses reconcile it as if there was
no separation at all for purposes of characterizing property or the length
of the marriage for support purposes.
What is a Legal Separation?
Legal Separation is a Decree or Judgment with all the attributes of a
divorce judgment except one: Marital status is not terminated and, for
instance, neither party can remarry or enter into a new domestic partnership.
For example, child custody, property division and child support and spousal
support may all be addressed in a legal separation, just as they would
in a dissolution. Parties who undergo a legal separation cannot marry
another person until there is a later decree dissolving the marriage or
upon the death of one spouse.
There are many reasons why spouses may wish to separate their affairs and
yet remain legally married or as domestic partners. A couple may wish
to seek a legal separation for religious or personal reasons, so they
may remain legally married or as domestic partners while living separate
lives. For married couples, one argument for legal separation is that
there are significant health insurance consequences upon divorce: Under
federal COBRA legislation health insurance coverage is lost soon (between
18 to 36 months) after marital status is terminated. Other economic consequences
involve tax planning, or estate planning. In a compassionate breakup where
a new marriage is not expected, legal separation can be a beneficial alternative
to divorce in order to preserve certain benefits and protections to both persons.
When Can I File for Legal Separation?
To be eligible to file a dissolution of any kind in California you must
reside in this State for at least 6 months. You do not need to establish
residency in California in order to file a Petition for Legal Separation.
This means that you can avail yourself of protections in this state under
while you establish residency here, and later amend your pleadings to
seek a dissolution. However, if you came from another State and the other
person files a divorce there and serves you before you file a dissolution
in California, you will have to go to that State to defend the action.
Interested in exploring your options in regards to a legal separation?
Thurman W. Arnold and Michael C. Peterson offer free consultations to discuss
your case and address your particular needs. He has personally been representing
and divorce proceedings throughout the Coachella Valley since 1982. We
accept cases throughout the Coachella Valley from our offices in Palm
Springs, including in Indio, La Quinta, Indian Wells, Rancho Mirage, Palm
Desert, and Desert Hot Springs, and in the Hi-Desert and eastern San Bernardino
Contact Palm Springs separation lawyers Thurman W. Arnold and Michael C. Peterson today!
We serve clients wanting a legal separation particularly within the desert
cities of Palm Springs, Indian Wells, La Quinta, Rancho Mirage, Joshua
Tree, Blythe, Hemet, Twenty-Nine Palms, Cathedral City, Indio, Desert
Hot Springs, Yucca Valley, and Riverside!