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

Updated: Nov 24, 2022

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 terminate their marriage status. 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?

Before a legal separation can happen, a Petition for Legal Separation must be filed. This is the same form that is used to ask for a divorce. 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. The respondent has 30 days to file their answer after getting the petition and summons.

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

Like a dissolution of marriage case, the court decides on a legal separation case 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.

What Is The Difference Between Legal Separation vs. Divorce?

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

  1. First of all, a legal separation doesn't end a couple's marriage; it just ends their physical relationship. 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. In the same way, a married couple may owe taxes if one of them can't file 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, specific 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.

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 judicious, speak with your Irvine family law attorney.

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