Divorce vs Legal Separation

Petition for Dissolution or Legal Separation, what do I do?

A party who seeks to alter his or her marital status must complete and file a petition and file it with the court. The form is called the Judicial Council Form FL-100 and can be found on our webpage. Your case starts when the petition, family law summons and notice of related cases forms are filed with the court. A joint petition for summary dissolution may be filed in certain cases and we talk about that process in our article “SUMMARY DISSOLUTION-THE FASTEST WAY TO FILE FOR DIVORCE”

Reasons for legal separation

A judgment of dissolution of marriage or of legal separation may be granted only on the grounds of (1) irreconcilable differences that have caused the irremediable breakdown of the marriage or (2) permanent legal incapacity. The term "irreconcilable differences" as the stated grounds in most petitions for dissolution or legal separation are defined by statute as those grounds that are determined by the court to be substantial reasons for not continuing the marriage and that make it appear that the marriage should be dissolved. In order to meet the statutory requirement "the existence of substantial marital problems which have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and as to which there is no reasonable possibility of elimination, correction or resolution” must exist. You can google the case of Marriage of Walton (1972) 28 CA3d 108, 118 for the full explanation of what that means. The other way to dissolve a marriage is on the grounds of permanent legal incapacity, but that is a less common ground and the subject of a different article.

As a practical matter, courts nearly always hold irreconcilable differences exist and, consequently, their existence is rarely an issue in dissolution or legal separation proceedings. However, if there is a hearing with both spouses present, and one spouse states that there is a possibility of reconciliation, if it appears to the court that there is a reasonable possibility of reconciliation, the court must continue the proceeding for no more than 30 days pursuant to the Family Code.

Why legal separation vs divorce

The most common reason for seeking a Legal Separation rather than a divorce is to avoid the dissolution residency requirement. You see a judgment of dissolution of marriage may not be entered unless at least one of the parties was a resident of California for 6 months, and of the county in which the petition was filed for 3 months, immediately before the filing of the petition for divorce under the Family Code. This residency requirement is mandatory and may not be circumvented by stipulation or consent. However, there is no statutory residency requirement for a judgment of legal separation. Also, an exception to the residency requirement exists for same-sex marriages that were entered into in California when neither party resides in a jurisdiction that will dissolve the marriage.

Residency requirements and legal separation

It is not uncommon for a new arrival in California to seek a dissolution. New arrivals may be concerned that the 6-month residency requirement for a dissolution and the 6-month waiting period may result in a wait approaching a year before the marriage may be terminated. This delay can be shortened by the party's filing a petition for legal separation and then amending the petition to one for dissolution when the residency requirement is met. The filing date of the amended petition or pleading is deemed to be the date of commencement of the proceeding for the dissolution of the marriage for the purposes only of the residence requirements of Section of the Family Law Code. Therefore, a judgment of dissolution may theoretically be final within 6 months after original jurisdiction over respondent is obtained by service of the summons and petition for legal separation.

Another reason for proceeding seeking a Legal Separation is to enable the petitioner to seek temporary orders for spousal and child support while waiting to meet the residency requirement for a judgment of dissolution. Furthermore, service of the Family Law Summons comes with automatic restraining orders against disposing of property and changing insurance beneficiaries and the like and they are effective against the respondent when he or she is served with the Family Law Summons and Petitioner for Legal Separation and will stop the Respondent from liquidating family assets and hiding money.