Do You Have to File for Separation Before Divorce?

One of the first entries you must fill out as part of your divorce is your date of separation, which naturally brings up the question of “do you have to file for separation before divorce?” While the answer is “no, you can just file for divorce,” there are a number of reasons why you might want to consider separating before officially filing for divorce.

Do You Have to File for Separation Before Divorce?

A couple does not always need to go right to divorce.  Legal separation is an option for couples who are determining if they actually want to end their divorce.

California is a no-fault state, and both a legal separation and a divorce require the same declaration of “grounds for divorce.” The two options for “grounds” are irreconcilable differences or the incurable insanity of your spouse.

Legal separation can provide a so-to-speak “in between” from being married and being divorced. Legally separating allows both parties the time to figure out not only property division, custody, and support decisions, but also to decide if they really want to divorce.

As part of a legal separation, you’ll want to draft an agreement. This can be beneficial should you decide to go through with a divorce.

Included in a Legal Separation Agreement

A decree of legal separation addresses the same things a divorce decree does. This includes any alimony or child support and any issues of custody, visitation and property distribution. The terms of each are binding.

To note: a legal separation does not end your marriage. You will not be able to remarry.

Why Do Couples Choose Legal Separation?

Often times, drafting an agreement gives couples the opportunity to sit down and talk about all the issues they might be facing. A legal separation also allows for spouses to stay on the same health insurance. This can be very helpful for spouses that will be left without healthcare after the end of their marriage.

Legal separation can be a great option for couples who no longer want to be married but, for personal reasons, divorce is not an option. This can be due to religious preferences or due to family reasons. There are a great many options that legal separation can give couples that are not able to fully divorce.

In California, however, there may be one other advantage to choosing to legally separate before divorce – you can hasten the divorce process by filing for a legal separation first.

Moving Forward with Divorce

If you decide to divorce after your separation, California law allows you to convert your legal separation to a divorce. This can be done after your separation is final or at any point during the legal process. Either spouse is able to file a request for the conversion. This will require additional paperwork.

Another way to move your divorce along without establishing residency for 6 months (which is required in California), you can file for legal separation immediately. The six-month waiting period for a final divorce decree begins as you work through the legal separation procedure. When it has expired, you are able to file to convert your matter to a divorce.

Even if you feel like your marriage can be saved, and you do not want to pursue divorce, it’s advised that you work with a family law attorney. You’ll want to take actions to protect your assets, credit, home, children, and future right to support settlements. If your spouse files, a temporary hearing can be held in as little as a few days.

Do not feel like calling an attorney is “giving up” on your marriage. At Divorce Lawyers Los Angeles, our lawyers are well-versed in a variety of family law-related matters and we can help you understand the legal, emotional and financial implications of your divorce and the various issues that go along with it. Our legal team strives to handle each and every case as if it was our own and we can help you navigate the complexities of the California legal system so you can achieve the maximum recovery in your Los Angeles divorce or family law case. We will do everything in our power to make you feel comfortable and informed as you navigate the divorce waters.

Family Law

Divorce has many aspects, all of which need to be ironed out. This type of litigation falls under the title of family law. Family law covers the following aspects of divorce:

Child Custody

Child custody is the legal and practical relationship between a parent and a child in the parent’s care, involving the duty to care for and support the child.

One of the most important considerations during divorce should be establishing parental custody and visitation rights. There are two main types of child custody under California law: legal and physical custody.

Legal custody (California Family Code § 3003) can be joint, in which both parents share the right and responsibility to make important decisions about their children’s health, welfare and education, or sole, in which one parent is granted the exclusive responsibility for making these decisions, though the other parent may still have visiting rights. It is the presumption of the court in most divorce proceedings that it is in the best interest of the child to have continuing contact with both parents. However, if the parents are unable to agree on a parenting plan, it is up to the court to decide how they will share time with their children. Parents with legal custody are responsible for making the major decisions or choices about their children’s schooling or child care, residence, religious activities, mental health needs, medical needs, travel and extracurricular activities.

Physical custody (California Family Code § 3004) can also be joint, which means the children live with both parents, or sole, which means the children live with one parent for most of the time and may schedule regular visits with the other parent. California law favors joint legal and physical custody when both parents can agree to it. If they don’t agree, the court will establish a parenting plan that is in the children’s best interests.

Determining child custody is a sensitive, stressful matter that can easily become a point of contention among couples who are unable to agree on a shared plan for co-parenting their children. Our family law attorneys at Divorce Lawyers Los Angeles have experience guiding divorce clients through productive child custody negotiations and can help you and the other parent create a workable, amicable custody agreement that meets the needs of the two of you and your children as well.

Alimony / Spousal Support

Alimony, also known as spousal support, is an individual’s legal obligation to provide financial support to a former spouse after divorce.  In most cases of divorce in Los Angeles, one spouse earns more than the other, and during the marriage, the couple shared household income, which means the spouse who earns less suffers a far greater loss when the marriage ends.

Spousal support, more commonly known as alimony, payments are ongoing, periodic payments made from one spouse to another under a legal separation or divorce order issued by the court. Spousal support is intended to help an economically disadvantaged (or lower-earning) spouse continue to enjoy a similar standard of living after he or she is divorced. In most cases in Los Angeles, the spouse who earns a higher income is ordered by the court to pay alimony to the other spouse, though whether you are entitled to alimony in California divorce proceedings depends on a number of factors, including: your earning capacity, the length of your marriage and any documented history of domestic violence between you and your spouse. There are two types of spousal support in California:

  • Temporary spousal support – Set at your initial hearing and paid until a complete agreement is reached, or until a Final Order of Divorce is entered
  • Permanent spousal support– Paid for an indefinite period of time in an amount that can be modified later, if and when the financial circumstances of either spouse change

To file for spousal support in Los Angeles, the party requesting the payment must ask the judge to make a spousal support order, and this order must be issued as part of either a divorce or legal separation, or as part of a domestic violence restraining order. You can either ask that the alimony be paid while the case is going on (temporary spousal support) or once the divorce or legal separation becomes final, as part of the court judgment (permanent spousal support). Under California law, spousal support payments are automatically terminated upon the death or remarriage of the supported party. In some cases, the spousal support agreements can be changed, if the spouse making the payments suffers a significant financial hardship, or if the spouse receiving the payments suddenly requires less support.

Child Support

Child support is an ongoing, periodic payment made by a parent for the financial support of a child following the end of a marriage. The regulation of child support is an important issue among divorced or divorcing parents in Los Angeles, and the amount of child support owed by one parent to the other depends on a number of factors, including:

  • How much money the parents earn or can earn;
  • How many children the parents have together;
  • How much time each parent spends with the children;
  • Health insurance expenses;
  • The actual tax filing status of each parent;
  • The support of children from other relationships;
  • Mandatory retirement contributions;
  • Mandatory union dues; and
  • The cost of sharing daycare and uninsured healthcare costs.

Child custody, support and visitation arrangements are often the most hotly contested issues in divorce litigation and settlements in Los Angeles. With the cost of living in Los Angeles being so high, establishing the appropriate payment of child support from one parent to the other is one of the most important steps divorced or divorcing parents will have to take.

Property Division

The division of community property, or property acquired by the couple during their marriage, such as high assets, professional licenses, business ownership and other complex financial matters can be one of the most contentious issues to iron out during a divorce. In the state of California, complex property division involves the distribution of high-value marital assets, including retirement accounts, ownership rights to a business, professional practices and investment portfolios, among others, which can be a hotly contested issue for some couples.

California is a community property state, which means all property and assets (and debts) acquired by the couple during marriage is legally considered community property owned by both spouses equally and should therefore be divided equally in divorce. Some of the high-value assets at risk in high net worth divorces include:

  • Pensions
  • Stock options
  • Corporate business assets
  • Business valuations
  • Inheritances
  • Professional practices
  • Investment portfolios
  • Residential and commercial real estate
  • 401(k)s, IRAs and other retirement accounts

Los Angeles divorces involving complex property division due to significant assets, professional licenses, business ownership and other complicated financial matters are often highly contentious and high profile, but they don’t have to end in a bitter legal battle.

Free Family Law Consultation in Los Angeles

Legal matters that fall under the umbrella of family law tend to be contentious and therefore require a great deal of experience, compassion, communication and attention to detail. Far too often, family law cases that could have been settled amicably end up bitter court battles because the parties involved attempted to handle the matter on their own without reputable legal help, or they hired an attorney with no experience in family law. At DivorceLawyersLosAngeles.com, we understand how difficult and frustrating the legal process can be, especially when dealing with sensitive family law issues, and our attorneys are committed to helping you achieve a favorable outcome, whether it is through private negotiation, third-party mediation or at trial. For more information about family law cases, the divorce process and spousal or child support in California, or to schedule a free consultation with a knowledgeable family law attorney, click here contact Divorce Lawyers Los Angeles today at (213) 550-4600.

 

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