When you can no longer confront irreconcilable differences with your partner, most people often think it is time to simply file for a divorce and completely sever your legal relationship with your spouse or domestic partner. A legal separation may be available to couples that are taking legal steps to separate, and is similar to a divorce but with negotiations made and agreements. Divorces are more final, while legal separations can live and act separately but still can join back later as a married couple.
Let’s take a look at both of these options and discover whether a divorce or legal separation is right for your situation.
What is the Difference Between Divorce and Legal Separation?
The main difference between divorce and legal separation is its permanence.
Here we go over the intricacies of each to see how these two options differ.
What is Divorce?
A divorce is also called a “dissolution of marriage”, and is a permanent end to your marriage. Legally, after your divorce, you are single and allowed to get remarried. With a divorce, there can be agreements made or involve a judge to order how your money, assets, debts, visitation, custody, and support is handled with your former spouse, similar to how a legal separation is handled.
The divorce process consists of two distinct parts: negotiation and final judgment of dissolution. Contested divorces involve hiring a family law attorney to work out their family issues like alimony, child custody, child support, and property division in court. An uncontested divorce is where both partners work out an agreement upon themselves without having to see a judge. There is the possibility that you can get a divorce without any negotiations or if you and your spouse already have a prenup set in place. Your divorce is not final until a judge has your divorce decree and finalizes your marriage dissolution.
Why Choose Divorce Over Separation?
- Allows you to be legally single and able to remarry
- Finalizes an end to your marriage
- Cut legal ties and financial matters
- Establish child support or spousal support obligations
What is Legal Separation?
California is one of the states that allows married couples to legally be separated. Legal separation is an official court order where you and your partner do not live together and wish to carry on in your lives separately, but without the permanence of a divorce. By doing this, you are able to create financial boundaries, determine who is responsible for assets and debts, and go into further detail with your child custody and support.
Why Choose Separation Over Divorce?
- Tax benefits
- Unsure if you’re both willing to reconcile and are letting time away from one another give you perspective or time to work with a marriage counselor
- Retaining medical benefits
- Residency restrictions
- Financial freedom and separation
- Social security benefits
- Aren’t ready to negotiate
What is the Difference in Procedures?
Both of these legal procedures are complicated. Each follows a similar course, starting by filing a petition. You will disclose your financial details and the position to your spouse as well as the court. In both situations it is necessary to decide how property will be divided, how much child support is owed, and the next steps you will both take in co-parenting your children. Both situations also allow you to come to a settlement agreement and resolve your financial and other decisions, or go to court to decide on them there.
The Divorce Procedure:
- A divorce petition is filed and served to the other spouse.
- The respondent needs to file a response to the petition within 30 days.
- One spouse can request a hearing to create temporary child custody or spousal support.
- Each spouse exchanges information and documents that relate to their divorce, including income and other expenses.
- Both spouses meet one another with their attorneys to discuss settlement of their case. Their Marital Settlement Agreement will then be signed and includes all of the terms of their agreement.
- If one of the spouses does not agree on the issues within the agreement, a trial will take place.
- Once both parties sign the Agreement, a judgment of dissolution of their marriage is prepared and has the court orders.
The Legal Separation Procedure:
- You decide the legal grounds for your separation, whether irreconcilable differences or incurable insanity.
- File a petition that gives the option of separation or divorce.
- File forms to the local county court, and provide information about properties and children. This is also the time to request child custody orders from the court.
- If you have minor children, you will file a form to establish jurisdiction over a child if one of the parents lives in another state.
- Pay a filing fee.
Finding a Divorce Lawyer in California
Regardless if you choose a legal separation or a divorce, at Hann Law Firm in San Jose, California, we help you through your case to successfully come to an agreement that works for you and your ex-spouse. We work tirelessly with our skilled attorneys to help you receive the best outcome for your situation, and with the best interest for you and your children.
Contact us today and find a personal injury lawyer in California to talk about if a legal separation or divorce is right for you.