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.

For more information about legal separations, please click here.

Thurman Arnold III