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A legal separation is usually appropriate only in a narrow set of circumstances: divorce is against your religion and neither of you plan on remarrying; you need to remain married in order to be eligible to claim an interest in the other's Social Security benefits; one of you have significant medical issues which prevents him or her from obtaining private medical insurance; or you have not lived in the state long enough to file a regular divorce action.
A legal separation in California is very similar to a divorce or dissolution of marriage. The grounds for the legal separation are similar to that of a divorce, either citing irreconcilable differences or incurable insanity. Irreconcilable differences is the no-fault divorce option where neither party must prove fault of some kind by the other party. The second legal ground for legal separation requires professional medical or psychiatric testimony and evidence.
However, there are significant differences between a legal separation and a divorce. Both of you must agree to a legal separation. If both spouses do not agree specifically to a legal separation then proceedings automatically become divorce proceedings. Remember, both parties do not have to agree to a divorce. There is no waiting period in California for a legal separation; it can happen immediately, while it takes six months for a dissolution of marriage to be finalized. Finally, there is no residency requirement for a legal separation. You do not have to live in the state for six months before filing the action. But the most important difference is that technically, you remain married, which means of course that you cannot marry someone else.
The Family Law court system is built to be accessible to non-lawyers, but dissolution actions can be legally intensive and may require a great deal of paperwork to file, appearances to make and information to gather. It can be daunting and stressful- something you don’t need in the midst of the most stressful time of your life. Filing for a legal separation requires the following steps and we will be right there with you every step of the way:
- The Petition for Legal Separation is filed and personally served on the Respondent.
- The Respondent has thirty days to file a Response to Petition for Legal Separation, however they may respond anytime before the petitioner takes the respondent’s default for failure to respond.
- Request temporary court orders by filing for an Order to Show Cause hearing. At this hearing, the judge can make temporary awards of child custody, child and or spousal support, attorney’s fees, or property orders, if appropriate.
- The discovery process begins, and both spouses exchange financial information and documents that are relevant to the case. The Preliminary Declaration of Disclosure is mandatory for both sides. This is a court form in which each of you lists the community and separate property, provide estimates of value for each asset and debt, exchange current income and expense declarations setting forth employment earnings and personal expense information.
- Other forms of discovery are form interrogatories, special interrogatories, demands for inspection of documents or things, requests for admission and depositions (oral examination under penalty of perjury).
- Both spouses have a fiduciary obligation to the other to provide financial information to the other upon demand. Discovery is an on-going process until the dissolution case is almost ready for trial. If the parties are in agreement, then a settlement has been reached.
- Once discovery is largely complete, settlement of the case can be discussed. If the case is resolved by agreement, one of the attorneys will prepare a Marital Settlement Agreement, which will contain all of the terms of the agreement. This is a contract that is signed by you and your lawyers.
- If you do not agree on all of the issues in the case, a trial will take place.
- After both of you sign the Marital Settlement Agreement or after the trial has concluded, one of the attorneys will prepare a Judgment of Dissolution of Marriage. This is the document that contains all of the court's orders. The judgment is filed and the court mails a Notice of Entry of Judgment to each attorney. This means the Legal Separation has been granted.
Rojas Family Law, Inc. is able to provide Family Law Services to all of California, with a focus on Sacramento, Solano, Contra Costa, Placer, San Joaquin, Stanislaus, Napa, Marin, Yolo, San Francisco and El Dorado Counties.
Our goal is to always assist you with the utmost respect and attentive response in a prompt and professional manner. Call (916) 515-7020 or request your consultation online today to see how we can help you.
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