CALIFORNIA FAMILY AND DOMESTIC RELATIONS LAW

CAN’T LIVE WITH HIM, CAN’T LIVE WITHOUT HIM: LEGALLY ENDING YOUR MARRIAGE WITHOUT A DIVORCE

May 27th, 2007

As a spouse who may be thinking of filing for divorce, you may have reservations or difficulty making the final decision to take that trip down to your attorney’s office. For example, you may feel pressure to stay married due to the negative stigma of divorce perpetuated by certain cultures and religions. Alternatively, you may be dependent on your spouse for valuable benefits, such as medical insurance. What you may not know is that a traditional dissolution of your marriage or domestic partnership* is not necessarily your only option when seeking to formally end your relationship.

LEGAL SEPARATION
California offers the option of a legal separation as an alternative to divorce. A legal separation is similar to a dissolution of the marriage in that a court may make binding orders regarding child custody, child support, spousal support and the division of assets and debts. However, a legal separation will not terminate your marital status.

Pros
1. Cuts off surviving spouse’s right to inherit under intestate succession:
If you die without leaving a will, your spouse will not automatically inherit the bulk of your estate.
2. No more accumulation of community property:
After the judgment of legal separation is entered, any property acquired by you that would have been considered community property will now be considered your separate property and your spouse will have no right to claim any interest in it.
3. Residency Requirements do not apply:
In order to file for a dissolution of marriage, you must meet the residency requirements; you must have lived in the state of California for at least 6 months and the county in which you file your papers for 3 months. However, these requirements do not apply when you file for a legal separation.

Cons
1. Cannot remarry or enter into another domestic partnership:
Since you will not be legally divorced, you may not enter into another marriage or domestic partnership. If you do, the union will be considered void.
2. Both parties must consent to a legal separation:
If you ask the court to grant you a legal separation, but your spouse asks for a divorce, the court will treat the action as a divorce.

If your marriage or domestic partnership has met its end, you may want to consider a legal separation rather than a divorce. Although not right for everyone, for some it may be a convenient way to preserve benefits or to avoid negative stigma associated with divorce, while at the same time legally ending your relationship.

* As of January 1, 2005, the California Family Code equally applies to marriages and registered domestic partnerships.

Entry Filed under: General Divorce