Legal Separation in California

In California, which is a community property state, legal separation severs the tie of community property so that subsequent earnings of one spouse do not automatically become 50 percent owned by the other. After the separation, the spouses live as if they were divorced without ending their marriage. A legal separation in California is almost identical to divorce in California and is governed by many of the same laws.

Grounds

In California, a legal separation is filed on the same grounds as divorce. These are “irreconcilable differences,” under which neither party must prove these alleged differences, or “incurable insanity,” which requires professional medical or psychiatric testimony and evidence.

A judgment of legal separation (sometimes referred to as a marital separation) determines support, child custody, visitation and community property rights. The separation resolves all issues except the termination of the marriage.

Separation Agreement

A separation agreement is a legal binding contract signed by spouses, which is intended to resolve property, debt and child related issues. This can be a very complex and detailed document depending upon the unique situation of the marriage. Many spouses consult an attorney to provide this or they decide to prepare their own.

Residency

Unlike divorce, there is no residency requirement for filing for legal separation in California, which makes legal separation useful for those seeking divorce who have not yet met the state’s residency requirements. (The California Family Code Section 2320 requires a petitioner for divorce to have been a resident of the state for six months at the time of filing.) The Code Section 232 permits a legal separation to be converted into a divorce petition when the residency requirement is met. In the meantime, filing for legal separation allows the spouses to disclose financial records and negotiate issues such as child custody, child support, and alimony.

Procedure

Like divorce, legal separation requires filing a petition in a state court. Unlike divorce, however, legal separation cannot be granted unless both spouses agree or one spouse defaults by not responding to the petition. If the respondent spouse asks for a divorce, legal separation is not granted and a divorce proceeding ensues. If both spouses agree to legal separation, the process like a divorce, leads to a final judgment on child custody and other matters. In filing for legal separation, the petitioner must file in his or her local courthouse. The spouse has 30 days to respond before a default can be declared. A default terminates the right to have any say in the legal separation. Once the spouse responds, either party can take the next legal step to getting the legal separation.