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Tuesday, November 6, 2012

Legal Separation

Dissolution of Marriage v. Legal Separation

When you are considering a Divorce, one of the decisions that you will be required to make is whether you petition for Legal Separation or Dissolution of Marriage.

Some Similarities

There are a lot of similarities between the two. However, a judgment of legal separation will not end your marriage. You cannot remarry after getting a Legal Separation decree. You may, however, get adjudication of child custody, child and spousal support, bifurcation of community property and almost every order that is available in a dissolution of marriage proceeding.

Some Differences

There are key differences between the two ways of ending marriage. California is a no-fault state. What that means is that a party wishing to terminate a marriage can do so without having to prove much. All the party needs to do is state that they have irreconcilable differences with their spouse, and once they convince a judge of that, there is very little the other party can do to prevent the granting of a divorce decree. In this respect, Legal Separation is different in that both parties have to agree to a Legal Separation. The judge cannot thrust a legal separation on a party who wishes to divorce his or her spouse.

Why then would anyone want Legal Separation but not Dissolution of Marriage?

The most common reason is that neither party meets California Residency requirements for filing a divorce. If this is the case, a party may file a Petition for Legal Separation, and amend it later to a Petition for Dissolution of Marriage when they have met the residency requirements.

Parties to a marriage may also have religious or moral scruples which prohibit a divorce. Legal Separation may be a good option for an incompatible couple with these reservations about divorce.

Lastly, a person may be getting health insurance or other benefits through their spouse, and may want to be legally separated in order to have access to those benefits (note not all health insurance plans grant spousal benefits to legally separated spouses...check with your plan).

Keep in mind that Legal Separation is a distinct proceeding. If you get a judgment of Legal Separation, and later want to dissolve the marriage, you will need to file another petition, this time for dissolution of marriage, and pay attendant court fees all over again. Therefore you might want to think long and hard before filing for Legal Separation when you know that you really want a divorce. As always, consulting with trusted counsel is a good idea prior to making a divorce related move. Call 800-756-1091 and set-up an appointment if you need help.





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