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Divorce Vs. Legal Separation In California

Updated: Dec 6, 2022

What's The Difference Between A California Divorce And Legal Separation

When it comes to the law, specificity is important. While divorce and legal separation both denote a "break-up" between two legally wed individuals, they both have different legal repercussions in the long run. Here's a quick guide to divorce and legal separation, as often handled by our prescreened California Family Law Attorneys.

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Filing a Petition for Dissolution of Marriage is the first step in a divorce. A case file is opened, and a judge is assigned when the petition is filed. A "summons" is a legal document that notifications that a lawsuit is pending. These documents are served on the respondent, who has 30 days to file their response.

In divorce disputes, the date on which the respondent's petition and summons are served is crucial. Before the parties to a divorce can have their marital status terminated, there is a mandatory waiting time, often known as a cooling-off period. The regulation is that there must be a six-month cooling-off period beginning on the date the respondent is served.

When the parties to a divorce case establish a formal agreement incorporated into a decision, or when the court makes a judgment following a trial, the case is considered closed.

To know more about your legal options, consult with a prescreened California Divorce Lawyer near you.

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Legal Separation

Legal separation cases begin with filing a Petition for Legal Separation, which is the same form used to file for dissolution of marriage. At the top of the form, the petitioner simply checks the box for Legal Separation rather than Dissolution of Marriage. Then, the case file is opened, a judge is assigned, and a summons is issued, much like a divorce. The responder has 30 days from the date of serving of the petition and summons to file their response.

Legal separation actions, on the other hand, do not have a "cooling off" or waiting time because they are neither "divorce" nor "dissolution of marriage" cases.

A legal separation case is resolved in the same manner as dissolution of marriage case: the parties' written agreement is integrated into a decision, or the court makes a judgment following a trial. Throughout this trial, you'd be working alongside your California Family Law Attorney.

What's the Difference Between Divorce & Legal Separation?

Although there are many similarities between divorce and legal separation, they still have significant legal differences. The following are some of the differences:

  • Parties who undergo legal separation are still legally wedded to each other. In contrast, parties who receive a dissolution of marriage decree are no longer married.

  • There may be tax implications. For example, if a couple has a legal separation agreement but is still married, they can file joint taxes. Similarly, the married pair may owe taxes due to the other party's failure to disclose or pay taxes.

  • Benefits from Social Security. If the parties have been married for 10 years or more, they may be entitled to "derivative" benefits of the other party's collected social security benefits.

  • There may be some "death benefit" difficulties. For example, because the parties to a formal separation action will remain married after the verdict, there may be legal ramifications if one of the parties dies after the judgment.

  • There may be complications with your retirement account. When partners are legally separated, there may be concerns with the treatment of a retirement account for tax purposes and beneficiary designation, depending on the type of the account.

  • There might be issues with benefits. Specific life insurance plans, retirement accounts, and other financial accounts, like the "death benefit" described above, allow for the designation of a beneficiary. When couples divorce, they are no longer wedded to each other, and their beneficiaries may change. Consider the situation in which the parties are still married but have formally separated and obtained a legal separation action.

That said, these differences are vital to not only your current situation but any decisions you make going forward. However, not all situations are similar, so you can't always know the best legal choices you have from general legal guides. Consult your California Family Law Attorney for better and more strategic legal advice.

How Divorce & Legal Separation Similar?

Divorce and separation cases share a lot of similarities. The following are some examples of how divorce and legal separation cases are similar:

  • Legal separation cases and divorce proceedings both result in a judgment, which is a legally enforceable document.

  • Both dissolution and legal separation cases begin with the same paperwork, a "Petition." Both forms of cases are filed in the Family Court, and both are served with a summons. In each case, the respondent is served in the same manner.

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  • In dissolution and separation cases, parties must serve the other party with a "Declaration of Disclosure," which comprises a Schedule of Assets and Debts and an Income and Expense Declaration. In addition, each party is required to disclose any investment opportunities and other relevant information.

  • Divorce and separation cases involve the same types of hearings. In both sorts of lawsuits, there are always "status" or "case management" hearings, followed by "mandated settlement" talks.

  • In divorce and legal separation situations, either party may file a "Request for Order."

  • Property distribution, child custody and parenting time, child support, spousal support, exclusive use and possession of a dwelling, and other issues that may arise in a divorce or legal separation case may be the same.

Cases of divorce and legal separation are handled in the same way. Either the parties agree or don't, and if they don't, a trial will take place.

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