Legal separation in California can be a quicker way to split your life from your spouse’s, yet still be legally married. For some people, this is the only option because their religion prohibits divorce. Others like the benefits of legal separation in California, such as giving them time to determine if divorce is the right route or allowing one spouse to stay on the other’s insurance policies.
Whatever the case, it helps to understand the legal separation process. This article explains what legal separation is, how it differs from divorce and how to file for legal separation in California.
What is a legal separation?
A legal marriage separation is when spouses live separate lives but are still legally married.
Once the separation is official, the property each spouse acquires and the debt each spouse incurs becomes their separate property. A couple seeking legal separation may also receive official court orders regarding:
- The division of community property
- Child support
- Spousal support
- Child custody
- Each spouse’s responsibility to pay community debts
The orders in a separation are typically the same as the orders you may receive in a divorce, but unlike with divorce, you can’t remarry after separating from your spouse.
Legal separation vs divorce in California
In addition to not being able to remarrying, the other differences between divorce and legal separation in California include:
| Divorce | Legal separation | |
| Waiting period | Six-month waiting period before a couple may divorce | No waiting period |
| Residency requirement | At least one spouse must live in California for at least six months and in the county the file in for at least three months before either may file for divorce | Either spouse must have lived in California for any length of time |
How to file for legal separation in California
To start a legal separation, you basically need to know four things: why you’re filing, where to file, what you want in the separation and what forms to file.
1. Determine your reason for a legal separation
Under California law, a couple may legally separate for one of the following reasons:
- Permanent legal incapacity of a spouse
- Unfixable breakdown of the marriage because of irreconcilable differences
If you separate because of your spouse’s permanent legal incapacity, you must provide proof such as psychiatric or medical testimony regarding your spouse’s incapacity.
If you separate due to irreconcilable differences, you must prove that there are substantial reasons for not continuing your marriage.
2. Determine where to file
You may only file for legal separation in a court that has jurisdiction. The good news is that establishing jurisdiction in California is easier in a legal separation case than in a divorce case. To file for a legal separation in California, either you or your spouse has to have lived in California for any amount of time.
3. Know what you want from the separation
When you file for legal separation, you may request orders regarding child custody, child support and spousal support. You may also request and state your preference for how the court distributes community property.
Specifically, a petition for legal separation in California allows you to identify the following:
- Which parent you want to have legal custody of your children
- Which parent you want to have physical custody of your children
- What amount and type of visitation you want each parent to have
- Whether a child support order is necessary
- Whether you want spousal support
- What property and debts are separate
- What property and debts are quasi-community
- Whether you want to recover attorney fees and costs from your spouse
- Whether you want the court to restore your former name
Give yourself time to think about all of these options and what you desire. Some people find it helpful to discuss these issues with an experienced family law attorney, who can explain what each means.
4. File your petition for separation
You may start your case by filing a petition for legal separation. The petition asks for information regarding:
- When you were married
- Why you want to separate
- Your assets and debts
- Each minor child you share with your spouse
- The court history of each minor child (you must file a declaration under uniform child custody jurisdiction and enforcement act form with the court)
- What orders you want the court to make.
Filing your petition typically comes with a filing fee. In most California counties, the current fee is $435. Don’t worry if this price seems too steep—the court understands that not everyone has this kind of money at their fingertips. Spouses who don’t have the funds to cover the filing fee for their petition may ask the court to waive the fee by filing form FW-001.
5. Have your spouse personally served
Once you file your documents for legal separation in California, you need to have your spouse personally served. This means you must have someone who is 18 or older and not a party to your case personally deliver the following to your spouse:
- Your petition for dissolution
- A summons
- A blank response form
After the adult you choose serves your spouse, they need to fill out and sign a proof of service of summons form that must be filed with the court. After completing service on your spouse, your legal separation case is officially open.
6. Proceed with the case
Once you file your petition, you have the opportunity to gather evidence supporting your position. You can then negotiate with your spouse to try to reach a settlement. If you’re unable to agree on any issues relating to the separation, you can ask the court to decide for you. This typically involves a hearing where both parties have a chance to argue and present evidence to the court.
How an attorney can help
There are enough decisions when filing for a legal separation in California to boggle the mind. This is why some spouses find legal assistance beneficial. An attorney can review your financial and personal circumstances to help you determine whether a legal separation is your best option and advise you about the positive and negative consequences of the process. They can also help you gather the evidence necessary to prove your right to a separation and your right to the orders you request.
