California Divorce Separation - How it Differs from a Divorce and How to Get One
A California divorce separation is a legal separation where the court makes orders about children, support, and property but allows the couple to live apart while legally joined.
This is useful for couples who can't live together but have religious or moral reasons to avoid divorce; or emotional or financial reasons to delay divorce. A divorce is usually a better option than a Legal Separation unless you have strong reasons not to get one.
According to California law, there are six areas in which a California divorce separation differs from a regular divorce. Here are three of them:
1. Residency requirement: You can file your case for Legal Separation in the California county where you or your spouse live, even if you just moved there. There is no 3-month/6-month residency requirement.
2. Waiting period: Unlike a divorce, a Legal Separation in California does not have a six month waiting period after service of the Summons before it can become final. The only time limitation is how quickly you can complete the paperwork. But for the pace of bureaucracy, you can have your Judgment as soon as 31 days after serving the Petition (California Family Law form FL-100) and Summons (California Family Law form FL-110) if the case goes by default, or even immediately on filing for it if your papers are all done and the Respondent signs the Appearance, Stipulation and Waiver form (FL-130).
3. Both spouses must consent: According to California Family Code § 2345, a court may not render a judgment of Legal Separation without the consent of both parties, unless one party fails to make a general appearance (defaults). If your spouse contests the Legal Separation you will need to work out the terms to reach agreement on the issues. Then your spouse can file an Appearance & Waiver to let the case go on. If you absolutely can’t get agreement, you will probably need a lawyer.
How to fill out the forms
To file for a California divorce separation, you use the same California divorce forms that you would use for a regular divorce, but you have to do a few things differently. Complete instructions for how to do this are beyond the scope of this article, but here are some tips:
Marital Settlement Agreement: The wording used in a Settlement Agreement for a divorce is not written for a Legal Separation, so you will need to change the wording wherever it refers to termination of the marriage or dissolution of the marriage.
For a California divorce separation, this is a fairly simple agreement, so if you have any doubts or questions about debts, taxes, bankruptcy or future responsibility for your spouse, you should get help from a family law attorney.
The Petition (California divorce form FL-100)
In the caption section, check the box for Legal Separation instead of Dissolution
For Item 1, do not check any box for RESIDENCE
For Item 6 (on the back side of the form), check the boxes for items 6(b)(1) -- Legal Separation
based on irreconcilable differences -- instead of boxes for Dissolution at 6(a)(1).
Judgment (California divorce form FL-180)
For the caption, check the box for Legal Separation instead of Dissolution
For Item 4, do not check box 4a, nor enter a date for marital status to end because it does NOT end. Instead, check box 4b, Judgment of Legal Separation.
Declaration for Default or Uncontested Dissolution (California divorce form FL-170)
In the caption, check the box for Legal Separation.
Check box 22 and do NOT check box 18, 19, 20 or 21.
Notice of Entry of Judgment (California divorce form FL-190)
Check box 4 instead of box 1.
Leave blank the section that asks for "Effective date of termination of marital status."
Going to a Hearing
You will need to modify your testimony to fit the wording for Legal Separation. Keep in mind the differences between Dissolution and Legal Separation listed at the beginning of this article and adjust your testimony accordingly (no residence requirement) and also no restoration of wife’s maiden name, and use the words "Legal Separation" everywhere that people getting divorced would use "Dissolution" or "Divorce."
When your Judgment is entered, you are legally separated and you must file taxes as an unmarried person beginning with the year in which your Judgment is entered. This means you can file either as single, or head of household if you have a qualifying dependent.
To learn how you can get a complete set of instructions and forms to file for a Legal Separation, go to California Divorce Separation and sign up for the free guide.