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# 510 Legal separation

mp3 #510 What is Legal Separation? (mp3 file)


Family Law matters are very complex. Many who try to handle these matters on their own quickly find themselves overwhelmed and out of favor with the courts. Often times costs are cited as the reason for self representation. However, most people with assets and retirement plans stand to lose significant amounts of money, or worse, lose custody of their children if they are not properly represented. Continue here to be referred to an experienced and insured Family Law attorney:


A legal separation is one alternative to terminate the relationship with your spouse if you are no longer able to live with your spouse, but do not want a dissolution (formerly called divorce), or for religious, or some other reasons, do not want to terminate your marital status.

The major difference between a legal separation and a dissolution is that after court proceedings are completed in a legal separation, you are still married to your spouse and may not remarry.

There are many similarities between a legal separation and a dissolution. In either proceeding the court may make an equal division of community property, issue orders concerning custody and visitation of children (based upon what is in the best interest of the child), order the non-custodial parent to pay child support to the custodial parent, based upon the parties' respective financial conditions, order one party to pay to the other spousal support (formerly called alimony), order one party to pay the other's attorney's fees and costs, as well as issue restraining orders to prevent one party from disturbing the peace of the other.

The grounds for a legal separation are the same as for a dissolution: either irreconcilable differences, or incurable insanity. Irreconcilable differences simply means that there are problems between you and your spouse that make it impossible for the two of you to live together, and that these problems cannot be remedied by counseling or the passage of time. In determining that irreconcilable differences exist, the court is not concerned with hearing any evidence as to the nature of the marital problems. It is simply sufficient that one party testify that the differences are such that the marriage cannot be saved and one party is of the belief that the parties are no longer able to live together.

If a dispute exists as to which parent should be awarded physical custody of minor children, the court may accept evidence of spousal misconduct, but only if it has a direct bearing on the best interests of the children. The court must consider evidence that one spouse physically abused the other in determining the custody and visitation schedule for the minor children of a relationship. Evidence may include the testimony of one or both spouses.

You may file a petition for legal separation at any time. There is no durational residence requirement for a legal separation, as there is in a dissolution. To file for a dissolution, you must have lived in California for at least six months, and in the county in which you file the petition for the preceding three months. Unlike an action for dissolution, you may file for a legal separation as soon as you start living in California. If you don't meet the residence requirement for a dissolution, you may first file for a legal separation, and then later request that the court convert the action to a dissolution when you or your spouse have satisfied the residency requirement. You should understand that you may only convert a legal separation to a divorce if a judgment of legal separation has not been issued. If that decree, which indicates that the action is complete, has been issued, then you must file a new petition for dissolution.

The main advantage to a legal separation is that you may obtain temporary relief without waiting until you meet the dissolution residency requirements. Such temporary relief includes, but is not limited to, the following types of orders: An order directing that one spouse have physical custody of minor children, an order requiring the non custodial parent to pay child support; an order requiring one spouse to pay the other spousal support or an order that installment payments be made on certain community debts. The court may issue orders prohibiting one spouse from molesting or harassing the other, or order that one spouse move out of the family residence, if there have been recent examples 'of physical violence or a recent threat of physical violence. The court may also prohibit any property transfers until property rights have been settled by the parties or determined by the court.

The court may not approve a legal separation if the other party objects to it. In determining whether to get a legal separation or a divorce you should be aware that your medical coverage may be affected. If you are divorced your spouse may not continue to cover you on his or her insurance. If you are legally separated you may still be covered. Your legal separation or divorce may affect your military benefits as well as your military medical insurance coverage.

If you are undecided as to whether you should file for a legal separation or a dissolution, you should contact an attorney. If you do not have one, contact the lawyer referral service of your local county bar association.

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