What Are the Options for Legal Separation in Orange County?

What Are the Options for Legal Separation in Orange County?

The decision to conclude a marriage or domestic partnership can be complicated. Many unhappy couples are caught in a difficult choice, unable to live together but unable to file for divorce. One of them may depend on the other for health insurance or other benefits. Their family affairs may be entangled. They may have religious beliefs that forbid a formal divorce. Or they may simply not have lived in California long enough to qualify for a divorce filing.

Whatever their reasoning, married couples or domestic partners may still want to live apart and formalize their financial affairs and custody arrangements without divorcing. In California, a legal separation will allow them to do so without a “cool-off” period, unlike a divorce.

Divorce vs. Separation

A divorce dissolves a marriage, but under legal separation, the couple remains married. There are fewer barriers to a separation in California. To obtain a divorce, the person who files a petition must have lived in the state for at least six months and at least three months in the county where they file. There is a further six-month waiting period before the court can enter an order for dissolution, counted from the date that a spouse received a summons or filed an appearance.

There is no requirement for length of residency for a legal separation in California, and there is no six-month waiting period. Either married couples or domestic partners may file for separation. One or both partners may later elect to divorce.

As with divorce, legal separation allows the court to formalize:

• The division of marital property
• The apportionment of debts
• Custody and visitation schedules for minor children
• Spousal support, if appropriate

Property that the partners acquire will no longer be community property. However, since a legally separated couple remains married, they may continue to benefit from their marital status for the purposes of—

• Tax filings
• Health insurance
• Military benefits
• Social Security benefits
• Inheritance and probate

Nonetheless, it is important to review your documents and check with an attorney to ensure that a legal separation does not affect a particular contract or benefit you may rely on.

How Separation Filings Work

Legal separation and divorce filings share some requirements in California. A petitioner uses a standard form to file for divorce, legal separation, or annulment. If they have minor children, they must also file a custody declaration. The form requires the petitioner to state one of two reasons for the separation: irreconcilable differences or the partner’s permanent legal incapacity to make decisions. If incapacity is the reason, then the petitioner will continue to have legal obligations to the disabled partner.

Once the petitioner files these forms with the local county court, they must have copies served on their partner—the respondent—together with a summons. The respondent has 30 days to file a response. In Orange County, the petitioner and respondent must also report any family law or criminal cases they are already involved in.

Both partners automatically come under standard family law restraining orders. These prevent them both from taking various actions against the interest of the other partner or the minor children, unless the partner or the court grants written consent. These include:

• Removing the children from the state
• Applying for new passports for the children
• Changing insurance beneficiaries
• Transferring or concealing assets, whether they are separate property, community property, or quasi-community property

Both parties have 60 days after their filings to share financial disclosures with each other. These forms require reporting of each partner’s income, assets, and debts. The filing will also require two months’ proof of income, such as pay stubs. The Superior Court of Orange County requires specific financial disclosures for any trial or hearing, including the most recent tax returns and records of income and benefits.

The court wants partners to cooperate and present agreements for support, custody, and financial matters. When this occurs, the petitioner can file for an uncontested judgment or a default judgment with agreement, requesting court approval of their property and custody agreements.

In a legal separation, the partners may be more likely to be able to handle these matters with civility than a divorcing couple, agreeing beforehand or using a collaborative process to manage the details. This is, of course, by no means certain. If the respondent partner does not file their response with the court within 30 days, the petitioner can file

for a default, requesting approval of their own proposed judgment for property division and custody. The respondent may also refuse to agree, leading to a contested case.

Guidance for Your Situation

A legal separation will be far more difficult when one of the partners is difficult, refusing to cooperate in good faith. Our firm is familiar with how narcissistic and abusive partners work. We can defend you with strength and compassion during what could otherwise be some of the most painful proceedings of your life. To discuss a possible legal separation or divorce filing in Orange County, call us today at 949-889-1227 to schedule a meeting in our Lakeforest office.