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?
Contact Palm Springs separation lawyers Thurman W. Arnold and Michael C. Peterson today!