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Should You File for Legal Separation or Divorce? Here’s What You Should Know

When a married couple is facing a difficult period in their relationship, separation may sometimes be unavoidable. When at least one party decides to file for separation, the issue of whether to file for legal separation or divorce may arise.

Legal separation and divorce in California are two separate and different actions that should be carefully assessed before an action is taken. Even if these two legal actions give the appearance of being similar, their outcomes are sufficiently different that careful consideration should be made.

Divorce Actions in California

Filing for divorce in California requires petitioning for a dissolution of marriage. Once the petition has been filed, a family law judge will be assigned to the case and a summons will be issued. The summons and the petition will be served to the non-petitioning party, who is legally referred to as the respondent. The respondent will have to provide a response to the divorce within 30 days of receiving the documents.

Based on California Family Code §2339(a), the termination of a marriage cannot occur until six months have passed from the date of which the summons and petition were served to the respondent or the date of the appearance has occurred, whichever comes first. The six-months waiting period provides couples an opportunity to cancel the process and reconcile if they choose to do so.

Divorce cases are concluded once the parties have written an agreement that is incorporated into their judgment, or once the court has issued a judgment after their trial.

What to Expect from Legal Separation Actions

Similar to divorce actions, legal separation cases also begin with one party filing the same petition required for marriage dissolution: A Petition for Legal Separation. Instead, however, the petitioning party will select the box requesting a legal separation instead of the dissolution of marriage. Like divorce cases, the process will entail a family law judge being assigned to the case and a summons being issued. The respondent will also have 30 days to respond to the petition and summons.

In legal separations, however, a permanent dissolution of marriage is not obtained, therefore, there is no waiting period. Legal separations will also conclude once both parties have written an agreement that will be incorporated into the judgment or once the court has issued a judgment after the trial.

Legal separations also act as a divorce filing in the sense that it  draws a line in the sand as to the accumulation of “Community assets and debts” as opposed to ‘Separate Assets and Debts”.

Key Differences Between Legal Separations and a Dissolution of Marriage

When it comes to the processes of legal separations and divorces, both are very similar, but there are stark differences between both actions. It is important to recognize that the legal implications of opting for either action can be significant. A few key differences include, but are not limited to:

  • Marriage – Divorces mean the parties have permanently dissolved their marriage, whereas legal separations mean the parties continue to be legally married. Filing a Petition for Legal Separation acts as the legal demarcation of the parties separation.Parties could choose to obtain a legal separation as opposed to a divorce for various reasons, such as religious choice or to remain on the other parties health insurance
  • Tax Implications – Parties can continue to file joint taxes if they have a legal separation.
  • Beneficiary Issues – When a divorce has been obtained, the parties will no longer be entitled to receive benefits from their former spouses. When they are legally separated, however, they can continue to receive benefits unless they choose otherwise.

When Facing a Marital Separation, Consult With a Knowledgeable Attorney Before Making a Decision

Filing for either divorce or legal separation can be an extremely difficult decision. To make matters worse, there are far too many considerations that should be carefully weighed before a final determination can be made. If you are facing a separation, consider speaking with a well-versed family law attorney to help you decide which option is best for you.

Milligan, Beswick, Levine & Knox, LLP has many years of dedicated experience helping individuals decide whether a legal separation or marriage dissolution is the best decision for their family. If you are facing a marital separation, consider seeking the legal guidance of the law firm. Contact them today to schedule your free consultation.

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