One of the most difficult decisions for a couple to make is to end their marriage. Getting a divorce in California can be stressful, frustrating, and confusing amongst many other things. When couples decide to call it quits, they often don’t know where to start. It is common for troubled couples to wonder if they should opt for Legal Separation or Divorce; most don’t know the major differences between the two.
Legal Separation is similar to Divorce in that the couple decides to end their marital relationship. However, for
certain reasons they do not want to formally finalize a divorce so, they opt for legal separation.
There are several reasons married couples may choose legal separation rather than divorce. Religious, cultural,
or other moral beliefs that oppose divorce are common reasons. Some choose not to divorce because of issues with residency that interfere with getting a divorce. Others decide to remain legally married so that they may continue to benefit from family health insurance plans.
Similar to divorce, when couples legally separate, the court will order the division of property and determine
spousal support. If children are involved the court will also determine child support, child custody, and visitation.
The most distinguishing factor between legal separation and divorce is that even after legal separation is final, the
couple will remain married and therefore is not allowed to remarry unless they proceed with an actual divorce.
When a couple decides to end their marriage, especially when they have been married for a long time, they are
making a decision to substantially change their lives. The California divorce process requires many decisions
to be made either by an agreement between the parties or an order made by the court. All property, debts, assets, and liabilities must be divided. Additionally, spousal support must be determined if the right to support has not been waived. Finally, if the divorcing couple have children, the issues of child support, child custody, and visitation must be resolved. Divorce is very complex and there are several phases that one will go through before a divorce is finalized.
Stages of a California Divorce:
- Petition for divorce is filed by one spouse;
- The other spouse must file a response to the divorce petition;
- Either or both spouses may request temporary orders until the case is complete. Temporary orders may then be granted for spousal support, child support, child custody, visitation, possession of property, etc.
- Each spouse must exchange required documents that prove their income, assets, debts, and monthly expenses.
- The spouses or 3rd parties may be interviewed, under oath. This is to allow the parties to obtain necessary information that was not obtained previously.
- Mediation and/or negotiation will take place to give the parties an opportunity to agree on the issues.
- If the spouses can reach an agreement, a Marital Settlement Agreement is executed by all parties. If no settlement is reached, the case will proceed to trial.
- Judgment of Dissolution must be filed, containing the terms of either the Settlement Agreement or the trial decision.
California is a community property state which means: all property acquired during marriage and before separation, other than by gift or inheritance is considered to belong to the marital community (absent showing otherwise) and must be divided equally if the couple Divorces. How property will be divided depends on each spouse’s debts, assets,
liabilities, and property, which must be fully disclosed to the other spouse. If the spouses are unable to agree on division of assets, the court will make the final determination. In California, although child support is controlled by a formula created by the state, spousal support is not; the court has broad discretion when
determining spousal support.
Spousal support is not guaranteed. In long term marriages, spousal support can be ordered indefinitely, even after the spouses retire. The court may even decide not to award spousal support at all depending on the several factors the court considers such as the income of the parties, the parties’ ability to work and earning capacity, the marital standard of living, and more.
California divorce is a very specialized practice of law. In order to be successful in your family law case, you must be educated in many areas that typically aren’t generally known by those who have never been involved in a family law case. For more information on California divorce, check out our divorce articles.
f you need assistance with your California divorce case, please visit our Get Started page to learn the next steps.