California Residency in Family Law Cases

Should you file for divorce or legal separation?

California Residency in Family Law Cases – Divorce or Legal Separation?

Let's talk about California residency in family law cases. The family court cannot enter a judgment of dissolution unless one of the parties was a resident of the State of California for six months and a resident of county the spouse intends to file for three months immediately before the divorce petition is filed. This California residency requirement is mandatory, which means it is absolutely necessary for the court to have the power to enter a judgment of "dissolution" (divorce).

One way a spouse can get around the residency requirement is to file a petition for "legal separation" and not one for divorce. Once the legal separation petition is filed and served, the spouse who filed it can wait until he or she meets the minimum six-month residency requirement and then "amend" the petition to one for dissolution of marriage. When a spouse does this to get around the California residency requirements in family law cases, the actual filing date of the amended petition for dissolution of marriage is considered the date that the court acquired power to grant a divorce for the purposes of the six-month and three-month residency.

Under what conditions would a spouse need to file a legal separation petition rather than simply waiting to meet the six-month requirement before filing anything with the intended county? There are several scenarios but let's discuss the most common.

1. The need for temporary orders as the basis for a legal separation action

A spouse may need immediate temporary orders, such as those for child custody or child support. In such situations, if a spouse does not proceed with a legal separation action, he or she can be placed into a difficult financial situation or the children can be placed in danger of abuse or abduction. By filing a legal separation action, the concerned spouse can obtain temporary orders to allow his or her financial situation to stabilize (by requesting child support and/or alimony) and protect the children, if they are at risk. This gives the spouse protections without waiting to meet California's residency requirements.

2. Immediate protection on the back of the summons

The filing a legal separation petition also allows the spouse to seek the protection of the automatic temporary restraining orders (ATROS) that going into effect any time a legal separation or a divorce is filed. We discuss ATROs in the previously linked article. Please check it out.

Knowing the residency requirements and how to get around them is an important part of strategy in any divorce case where a spouse has not lived in California for six months or in the intended county for three months immediately preceding the petition but still needs the protections of our Family Court.

Do you have questions about residency and whether you should file for divorce or legal separation? Our experienced divorce attorneys are ready to help.

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