Daria met with her attorney, fully intending to file divorce as soon as possible. She and her estranged husband were both confused about whether to end their marriage or try to patch things up. They were also deeply concerned about their two children. As Daria spoke with her attorney, she learned more about divorce and legal separation under California law. She decided to weigh her options carefully to see which fit her situation better.
Some states do not recognize legal separation. California is one of the states that does allow legal separation of a married couple. In fact, filing a divorce petition and a legal separation are essentially the same process. A couple going through a legal separation, as with a divorce, may negotiate separation of community assets and debts, a parenting plan if they have children, spousal support, and child support arrangements.
One reason for Daria to choose a legal separation involves the California residency requirement. To file a divorce, either spouse must have lived in California for the past six months AND have lived in the county where the divorce will be file for the past three months. An individual who wants to file for legal separation is not bound by the residency requirement.
If Daria chooses to file a legal separation under California law, she will need to take these steps:
- File a petition with the appropriate court asking for a legal separation.
- Serve a copy of the petition on her spouse and file a proof of service with the clerk.
- Since she and her spouse have children, she will file a copy of the petition with the local child support agency.
- Daria’s spouse has 30 days to answer the petition for legal separation. What happens next depends on how the spouse responded. The couple may engage in discovery or meet with a mediator if necessary.
- If they reach an agreement, they may each be required to prepare and serve a final Declaration of Disclosure.
- The Judge will issue an order finalizing the separation.
Note that a legally-separated couple are still married to each other and cannot marry anyone else. Also, under California law, the parties involved in a legal separation proceeding may convert the separation to a divorce at any time.