IS A LEGAL SEPARATION THE SAME AS A DIVORCE?
by Jennifer Lawton, Family Law Attorney Fresno
“Legal Separation is almost exactly the same as a Divorce except that in the end, the parties remain married, but in name alone. Like a divorce, the issues involved include child custody, child visitation, child support, spousal support, the division of community property, and attorney’s fees. Legal separation was intended to assist couples who have religious reasons against getting a divorce or for those who want to preserve benefits only available to couples who are married, such as health insurance. It requires the consent of both parties. Without that consent, the action is automatically converted into a Divorce. A Judgement of Legal Separation can later be converted by either party into a Judgement of Divorce without having to re-litigate the entire case.” Jennifer Lawton, Family Law Attorney Fresno.
Like a divorce, Legal Separation is an actual lawsuit. No one needs to have done anything wrong in order to file. California is a “no-fault” state. All a spouse has to allege is that the couple cannot get along. Legally, this is called “irreconcilable differences.” There is no requirement that these differences be proven. Any spouse can decide to file a divorce even if the other spouse does not want to get one. The only thing the family court is interested in is helping spouses reach a fair agreement concerning all of the issues in their case.
The Family Court encourages parties to resolve their cases by agreement and gives those cases priority on its calendar. Couples who can amicably resolve their cases do not even have to appear in court. Except in very limited circumstances, the court will allow you and your spouse to agree to almost anything you want. Reaching an agreement is also the best way to reduce attorneys’ fees and stress on your family.
Unfortunately, the emotions in a Legal Separation often make it very difficult to reach a consensus. Legal Separation is a complex area of law and can take an extended period of time to resolve if the parties are either unable or unwilling to reach agreements. In such cases, the court will be the one to make the final decision. When this occurs, the parties will be forced to pay a substantial amount of attorney’s fees and costs to have a trial. In addition, a judge will not necessarily decide the case the way either party wants and may just pick a solution neither party likes or could have anticipated.
After you get a Legal Separation, you will not be single or able to get remarried should you choose to do so. You will also be required to abide by any obligations imposed upon you by the Family Court, e.g., pay support. You will be able to convert the Judgment of Legal Separation to a Divorce. However, you will have to file an amended Petition and pay additional fees to the Court. I suggest you contact a Fresno family law attorney to make the arrangements as the process is complex.