Privacy Regarding California Legal Separation
Legal separation is essentially a formal way of living apart; however, there are legal advantages to this status. For example, in California, you can divide assets and debts, receive spousal support and child support, as well as determine visitation and custody issues. You also have a way of preparing for divorce. Popular problems associated with divorce include negative effects on your credit score, dramatic lifestyle changes and children being impacted by the process. A legal separation allows you to maintain a status quo related to your income, retirement savings and income as you investigate your options in regard to dissolving your marriage.
In California, there are specific requirements for legal separation that apply. You do not have to be legally married for a certain length of time, nor do you have to show "fault." A legal separation begins with one filing a request form with the court. Within 30 days of the filing , the other spouse must be notified of the request. After that point, there is a six-month waiting period during which the spouse that did not file the request may contest the separation. On the other hand, if the person that filed the paperwork does not go through with seeking a divorce, the person that received the paperwork can petition the court to have the case dismissed.
In addition to determining issues of support and custody, a legal separation involves dividing marital property and debts. If you have children and you are getting a legal separation, it is very important that you understand how California law determines child support and visitation issues. This information will help you to negotiate an agreement that will protect your interests and those of your children. Financial issues, whether as they relate to your future ability to support yourself, spousal support obligations or the division of assets and debts, also must be analyzed.
California Legal Separation Financial Impact
A legal separation affects your finances in a variety of ways. First and foremost, once you separate you should be living separately, or at least under different roof. While you can agree to continue to share certain expenses, realistically there are very limited specific costs that can be shared. Because of these shared expected expenses (like house payments or mortgage payments), many might choose to continue to live together after they separate. This is not recommended because it complicates your financial life, your relationship and most importantly your legal separation agreement.
You should consider selling your house and dividing the equity between you, but if not, there will be expenses in maintaining the home or paying for a new home. Things like utilities, groceries, children’s expenses and medical expenses. At this point, it is difficult to figure out who is responsible for what expenses and how much will be contributed by each spouse.
Unpaid debts should still be paid. Who pays the debt? Does the debtor get paid back? Do you each split the payment?
Your taxes may change based on your marital status. You can no longer file a joint tax return (unless you have enough rental property or other income to warrant using the married filing separately, a considerably higher tax bracket and would then pay more taxes). You may or may not be able to claim a dependent depending on the custody agreement you have in place. You may be able to maximize your tax deductions. Having a tax expert analyze your situation is highly advised.
The dividing couples may need to appoint an accountant to produce the assets, debts, and a net worth statement of the parties. From there, you can begin to divide the couple’s debts and assets fairly.
California Legal Separation and Operating Assets
A legal separation from a spouse in California allows for the protection of assets such as a house/real property (assuming title is in only one party’s name), bank and investment accounts, future earnings, and serious debts and liabilities. When a matter is in litigation in court, a spouse cannot move out, sell a residence, liquidate bank or business accounts, transfer stock, etc. without obtaining permission from a judicial officer in connection with a noticed motion or ex parte application.
One of the primary benefits in legal separation (if a formal Petition, Response, and Judgement are done) is that each party will be awarded a specified share of all such assets. Absent an order, there will be no transmutation, gift, assignment, waiver, change in character of property, or legal community property (defined under California Family Code 751) status for any of these assets.
In addition, spouses have an opportunity to work together to agree on how their community debts are handled, and to apportion responsibility for them. This is particularly important when there is a reluctance to sell a house or residence, or over what happens with a business interest or good will. (The benefits will be even more dramatic if a spouse is a close or controlling family member of a family business interest.) Often spouses are able to execute stipulations, where the spouse who retains possession of the community asset or property agrees to be largely solely responsible for a mortgage or other obligation, and indemnifies the other spouse for any claims they have in the future, by subrogation or otherwise.
There are many other benefits to be gained from a legal separation before, during or after a marital dissolution proceeding.
Spousal and Child Support Issues
The potential for spousal and child support during a legal separation may aid in the development of a more permanent arrangement. Because getting separated can be more strenuous than getting a divorce, it often helps to keep in mind all of the necessary details that must be resolved before you can be legally considered separated from a spouse. One part of an official separation is the determination of various financial concerns that need to be forced. These can include such things as child and spousal support, and it helps to be aware of what the possibility of spousal and child support can mean.
Spousal support may be seen as more of a permanent arrangement, or at least one that is determined with the long term in mind. The amount and likelihood of support are both based on how much each spouse earns, any distribution of debts, and the resale of property. The duration of spousal support is dependent on other factors, including the length of the marriage. While a trial separation may mean that no support is determined, a legal separation can mean for a more permanent arrangement.
Although a divorce may seem like a more permanent solution to separation, there are many reasons that you or your spouse may prefer to file for legal separation instead. No matter what the reason, a legal separation can assist in keeping properties separate and protecting certain financial assets. In the event of a legal separation, spousal and child support may be automatically determined by a court representative, aided by counselors and mediators. When the mediation fails, the court can have the authority to decide on the details of support, utilizing the law when one parent will be responsible for a child’s needs. To change the amount of child support that has been established, it is important to use the system to address any difficulties in following the court order.
Child support and spousal support are two vital considerations that are typically set forth when a couple decides to form a legal separation. While the process may help one spouse to protect certain assets, it can also mean long-term commitments to financial support.
California Legal Separation Health Insurance and Benefits
Health Insurance & Benefits During Separation
One area that is often overlooked during a separation is the impact on the couple’s health insurance coverage and other benefits. Like the income question, this will vary from case to case, depending on the parties to the separation, their employers and the coverage they are able to obtain during and after the separation process.
In California, under the California Insurance Code, a parent cannot terminate a child’s health insurance during the child’s minority without a court order in certain specified circumstances. (Cal. Ins. Code ยงยง 101-105, 101-105.5) Additionally , even in cases where the parties elect for one parent to cover the children and the other to pay support (discussed in greater detail in the section on Child Support), there are restrictions on when a parent who elects not to cover the children can later add them to their own plan. It is generally required that the parent who elected not to cover the children must wait until "Open Enrollment" for their employer’s plan in order to do so. In short, you cannot elect to drop the children’s coverage and then later move them back to your plan at whim.
Every family’s situation is different and it is critical to speak with your attorney, to understand the exact impact on your particular family’s needs for health care coverage.
California Legal Separation: Steps to Take
The first step in the legal separation process is to decide whether it will be a "break up and concede" separation or a "let’s fight and litigate in court" separation. If the former, you may be able to resolve issues related to property division, debt division, child custody and support, and/or spousal support without having to go to trial. On the other hand, if the latter is desired, a divorce attorney may be necessary to exercise the husband or wife’s legal rights during court proceedings. After determining how you would like to proceed with your separation, you must next file a petition for legal separation with your local Superior Court. The petition for legal separation requires various information, including full names and addresses, date of marriage, date of separation, and whether a request for spousal support will be made as part of the separation process. Once the petition has been filed, it must be legally served on the other spouse to give them notice that legal action is underway. This is especially important if the petitioner intends on later filing for divorce, as the legal separation petition may be used as grounds for divorce.
When Legal Separation Might be Preferable
In some cases, legal separation may provide you with better financial protection than an immediate divorce. The following scenarios may prove beneficial for you on a personal and economic level:
Incompatibility is a common reason for separation, but it does not carry the same financial or legal ramifications as a divorce. Prenuptial agreements, for example, are still applicable in your next marriage, which is not possible after a divorce. With a divorce, you might be forced to relinquish financial control of your assets in a way that is undesired, whereas separation allows you to retain full autonomy over your finances.
Separation may allow you to maintain health care benefits through your spouse’s insurance until a divorce is finalized. In some cases, the amount and availability of spousal support may be preferable after one year of legal separation than it would be after divorce.
If one spouse does not work and the other finds employment immediately after separation, the opportunity to take the job may prove problematic for the couple’s future should they remain married. In this case, a beneficial separation might be favorable.
Filing for legal separation may reduce the possibility of potential disputes over property division. In some cases, one spouse may be more open to the sale of assets, allowing the profits to be evenly distributed. Separating assets may encourage no-fault negotiations on important issues not included in the divorce proceedings.
Seeking Legal Guidance
When it comes to navigating the complexities of legal separation in California, the guidance of a qualified legal professional is paramount. A legal expert can demystify the intricacies of the process and provide tailored advice to your specific circumstances. They can help you understand the potential benefits you may gain from a legal separation and ensure that your financial interests are well protected in the division of assets and debts. From child custody to property division, legal professionals are equipped to guide you through each step, helping you make informed decisions that take into account both your immediate and long-term financial wellbeing .
Moreover, a legal professional can ensure that all the necessary documents are thoroughly completed and filed correctly within stipulated timeframes, so you can avoid unnecessary delays and pitfalls. They can also assist you in negotiating a separation agreement with your spouse, ensuring that it is legally binding and clearly outlines the responsibilities and expectations of both parties moving forward.
Navigating these difficult waters alone can be an overwhelming experience. With the right legal support, however, you can feel confident that your financial future will remain secure throughout the process.