How to get a separation in California - Physical separation? Legal separation?
It does not have to be overwhelming.
Separation from your spouse can be stressful and that is why the question how do you get a separation is often on the minds of husbands and wives. It's not just the act of physically separating from a spouse that is difficult but also how to handle custody and visitation, payment of bills, dividing bank accounts and, all the while, managing a potential divorce or separation's complex emotions. It also marks an important event in the ultimate divorce case because the date of separation holds significance on financial issues.
This article is not intended as legal advice for your specific situation. We will discuss generally the subject of separation, which is a little different than a divorce.
After you read this article, you should speak with one of our experienced attorneys. We are only a phone call or email away and can help provide clarity on any questions you may have regarding your separation .
The Preparation Phase of the Separation Process in California
Physical separation usually doesn't suddenly happen. Spouses whose relationship faces challenges and ultimately irreconcilable differences build up to the point they wish to live separate and apart. That build up is an important part of the process because most of the mistakes husbands and wives make is during this transition period.
The do's and do nots of getting a separation with children?
The children's best interest is something you will hear a lot during a legal separation as well as divorce and child custody cases. If your spouse is the kind who intends to use the children as leverage or doesn't have their best interest at heart, you have to be vigilant in how you handle the separation process.
- If you are the husband and you are concerned your wife will keep the children away from you if you move out, you may want to stay at the house. You have to balance that of course with whether or not your spouse is the type who may manufacture false domestic violence allegations against you.
- If you are the wife and are facing an abusive husband but one upon which you are financially dependent, the balancing test is just as difficult.
- Where will you go?
- How will you pay for the children's needs and your own if you move out and before there is a support order?
Here are some things to keep in mind:
1. You and your spouse can come to a written agreement, signed by both of you, on how the time with the children will be divided. Make sure, if you do so, that it covers things such as:
- Pick up and drop off,
- Specific days of the week and times (if practical) for each of you to spend with the children.
If you are the parent who won't be the primary caretaker of the children, be careful of vague visitation terms or those where you have to rely on the other parent to see the children. That just invites the children to be used as leverage if your spouse becomes angry with you or wants to use the children as leverage.
Both parents should know that the agreement they reach may just become what the court temporarily orders (or close to what the court orders) later on, unless there is a compelling reason to order otherwise or if the agreement was just a transition period to more time for one parent. For example, if you agreed to see the children on a limited basis because of the children's very young ages, you are not stuck with that agreement. Our attorneys strongly suggest you make yourself familiar with the Orange County Parenting Guidelines.
2. Take your safety and that of your children seriously. If your spouse was abusive to you during the marriage, especially if that abuse was physical and recent, allowing visitation with the children may put you and them in harm's way. If you are not sure what to do, contact one of our attorneys.
If your spouse is the type that will make false allegations of domestic violence or child abuse against you, pay attention - domestic violence often comes down to he said, she said and the effect of domestic violence findings on a child custody case can be long-lasting. Therefore, make every effort to NOT be alone with your spouse. Moving out may be the best option for you and hiring our firm to immediately file for legal separation or divorce and set an immediate court date for custody and visitation orders is the smart thing to do. If you are a father and going through a situation like this, consider reading our articles on fathers rights in California. No article is going to cover your particular case. Common sense is important but good legal advice is just as important. That is why you should have a private consultation with a lawyer about your specific facts.
Dealing with finances; when one household becomes two.
- Paying the mortgage, utilities and groceries…
- Dividing bank accounts…
- The children's expenses and we all know children can be expensive…
How do you maintain two households living separately?
Husbands and wives stress about money during a separation or divorce and for good reason. But it doesn't have to be overbearing. Help form an experienced family law attorney can go a long way.
One income or two? This makes a big difference. If the household has relied on one income, a separation can put a tremendous financial stress on both the working parent and the other. Husbands and wives who are able to communicate on a cooperative level have a far better chance to work out financial issues during the separation period. Things to consider are:
1. Whether the bank accounts should be divided 50/50. Such an arrangement makes sense if the spouses can also agree on some form of informal support until a formal legal separation or divorce petition is filed.
2. What should informal support be, if any? If one spouse has a much higher income than the other, informal support may be necessary. It is best however that such an arrangement be clear. For example, will the agreement be for direct support payments or the payment of bills? Will it be the same each month or on an as needed basis? These and other issues are best worked out before separation takes place.
3. Is there a danger of hiding or absconding with assets? In cases that involve large sums of cash, monies in hidden accounts or overseas or situations where one spouse controls all of the finances, waiting until there is separation before filing may not be the best choice. You may need the protections of the California Family Code, especially if one spouse has or intends to breach his or her fiduciary duties to the other.
Whatever you do, it is generally not wise to enter into settlement agreements on financial issues without the assistance of a lawyer. Even in small to mid-sized estates, division of assets, support agreements, or even payment of debts often needs the review of legal counsel. Don't make the mistake of thinking you know the law or trying to apply it on your own. Even if each of you do not get your own lawyer, a mediation attorney may assist you and help you come to an agreement consistent with the law.
Do you bring in a lawyer before you separate?
Yes, especially if you know legal separation or divorce is inevitable. Experienced family law attorneys can guide you on the separation process, help you make smart decisions and avoid mistakes. Attorneys can also help you answer questions like how much does a divorce cost (often the first thing on the minds of spouses) and how long does a divorce take?
What is legal separation in California?
Think of legal separation like a divorce, except you remain married. It involves the same petition and response process, the same mandatory disclosures, and the same process of dividing assets, debts, resolving with custody and support issues. If the spouses cannot agree, it also involves the same contested hearing process whereby the family law judge makes the ultimate decisions.
So why do spouses choose legal separation over a divorce? Most of the time, it is for religious or deeply personal reasons. There was a time where spouses chose legal separation to maintain one of them on the health insurance but that is becoming more difficult as health insurance companies have caught on to this. The other common situation it is used is when one spouse doesn't meet California's legal residency requirement. Legal separation also requires both spouses to agree to it. If one spouse wants a divorce and the other does not, the Court must permit a divorce.
So, how do you get a separation in California? You call us first.
You wouldn't perform a medical procedure on yourself would you? Going through a separation or divorce without legal help is not any smarter. Contact us today for an affordable strategy session. If you are serious about proceeding forward, we are serious about helping you.