What's The Difference: Divorce Vs. Legal Separation In Irvine

Distinguishing Legal Definitions Of Divorce And Legal Separation In California Family Law

Specificity is crucial in matters of law. For example, while divorce and legal separation signify a "break-up" between two legally married people, they have different long-term legal implications. Here is a brief guide to divorce and legal separation, which many of our prescreened California family law attorneys frequently handle.

divorce vs legal separation california

How Is Divorce Defined In California Family Law?

The initial step in getting a divorce is submitting a Petition for Dissolution of Marriage. When the petition is submitted, a case file is created, and a judge is chosen. Next, a "summons" is a legal document that announces the filing of a lawsuit. The respondent is served with these documents and has 30 days to submit a response.

The date the respondent's petition and summons are served is significant in divorce cases. This is because there must be a mandated waiting period, frequently referred to as a "cooling-off period," before the parties to a divorce can have their marriage status terminated. According to the rules, the cooling-off period must last six months and begin when the respondent is served.

A divorce case is deemed to be concluded when the parties reach a formal agreement that is included in a ruling or when the court issues a verdict after a trial. Consult with a prescreened Irvine divorce lawyer near you to learn more about your legal options.

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How Is Legal Separation Defined In California Family Law?

A Petition for Legal Separation, the same form used to apply for the dissolution of a marriage, must first be filed in cases involving legal separation. The petitioner just checks the option for legal separation rather than dissolution of marriage at the beginning of the form. Then, like a divorce, the case file is opened, a judge is assigned, and a summons is issued. After receiving the petition and summons, the respondent has 30 days to file their response.

However, as legal separation proceedings are neither "divorce" nor "dissolution of marriage" cases, there is no "cooling off" or waiting period.

Similar to a dissolution of marriage case, a legal separation case is decided by the court after a trial or by including the parties' written agreement in the ruling. Again, you should cooperate with your Irvine family law attorney during this trial.

Legal Separation vs. Divorce

Divorce and legal separation share many characteristics but also important legal distinctions. Here are a few of the differences:

  1. Legal separation does not dissolve a couple's marriage; it only dissolves the physical union. A dissolution of marriage decree, however, ends the marriage between the parties.

  2. There could be tax repercussions. A couple can pay joint taxes, for instance, if they have a legal separation agreement even though they are still legally wed. Similarly, a married couple may owe taxes due to one partner's inability to report or pay taxes.

  3. The difference in Social Security benefits. The spouses may be eligible for "derivative" payments from the other spouse's accumulated social security benefits if they have been married for ten years or longer.

  4. There could be issues with "death benefits." For instance, there can be legal repercussions if one of the parties passes away after the ruling because the parties to a formal separation action would continue to be married.

  5. Your retirement account might have issues. Depending on the type of account, there can be issues with how a retirement account is treated for tax purposes and beneficiary designation when partners are formally separated.

  6. Problems for other personal benefits. Like the "death benefit" mentioned above, certain life insurance plans, retirement accounts, and other financial accounts permit the choice of a beneficiary. In addition, couples who divorce are no longer legally married to one another; therefore, their beneficiaries may change. Think about a scenario where the couple is still legally wed but has split formally and filed for legal separation.

Having said that, these distinctions are essential to your situation right now as well as to any judgments you make moving forward. The most effective legal options may not always be evident from generic legal literature, as not all circumstances are the same. For more accurate legal counsel that is also more judici