Legal Separation

Legal Separation

Family Law Attorney Based in Irvine, CA

At times, a couple may want to maintain the marital status for religious reasons, or because of insurance needs, adverse tax consequences, or for any other reason. If you believe legal separation is a better option for you, Quinn & Dworakowski will assist you with the issues of support, custody and division of property and other assets associated with legal separation.

Frequently Asked Questions - Legal Separation

Q. How is a legal separation different from a dissolution of marriage?

A. For all practical purposes, there are very similar. They follow the same legal process - in both proceedings a petition must be filed and personally served, temporary and final orders, including child custody and visitation, may be issued by the court, and the division of assets and debts can occur. One of the big difference between legal separation and dissolution of marriage is that legal separation is reversible, meaning that if the parties wish to do so they may return to their married status by simply informing the court they wish to do so. Conversely, after a divorce decree is entered, there is no turning back. Parties who once again wish to be married to each must start anew. Another difference is that the parties cannot remarry while legally separated.

Generally, once the relationship collapses most parties want to cut all ties and chose the dissolution option. Some parties, however, go the legal separation route for various reasons: 1-there is possibility of reconciliation down the road; 2- the parties religious beliefs that prohibit divorce; and 3- financial reasons may also come into play, for example, must, if not all employers will drop coverage of the non-employee spouse following divorce. Also, many military benefits available to a spouse are terminated following divorce.

Q. Does a separation protect me from the debts of my spouse?

A. Yes, legal separation will protect you from debts acquired after the separation. Keep in mind, however, that any debts acquired during the marriage, but prior to the separation, are presumed to be community debt, for which both parties are responsible. It is important to note that while the community assets are to be separated equally between the parties, there is no such requirements regarding community debts, and the court may order one party to reimburse a bigger portion of the community debt.

Q. Do I need to go the court to separate from my spouse?

A. In order to be legally separated, the courts must be involved. A petition must be filed along with other paperwork so that a court has jurisdiction to issue an order on the separation. Without a court order, the parties are not "legally separated," but merely separated. Keep in mind that with the help of an attorney, you may be able to avoid having to personally appear in court. The divorce attorneys at Quinn & Dworakowski, LLP can assist you in your legal separation action.

Q. Can I draft a separation agreement without a lawyer?

A. Yes. The law does not require a lawyer draft a separation agreement and the parties are free to agree to whatever terms they deem appropriate. Keep in mind, however, that separation agreements frequently involve such complex issues as child custody, support, division of assets, date of separation, and therefore have far reaching consequences and implications. So while one may legally draft a separation agreement without legal representation, it is generally considered unwise to do so.

Q. Does a legal separation prevent a decree of dissolution (divorce) in the future?

A. No. a legal separation does not prevent a subsequent divorce decree. At any time, either party is free to file a petition requesting dissolution of the union, thereby ending the legally separation status.

Q. Is legal separation required before a divorce decree can be granted?

A. No. Legal separation is not required prior to dissolution. In fact, most parties do not get separated prior to filing a dissolution action but immediately file for dissolution.

Q. Can I still get support if we separate?

A. Absolutely. Legal separation offers the same remedies and options as a dissolution of marriage action.

Q. Does health insurance coverage continue after a separation?

A. Yes. Generally, health insurance coverage can continue following a legal separation. In fact, one of the most common reasons for choosing legal separation over dissolution of marriage is because is allows the non-employee spouse to continue receiving health insurance coverage.

Q. If my former spouse and I have been apart for several years without filing any kind of papers, are we still married?

A. Absolutely. Until a court issues an order stating you are no longer married, you remain legally married.

Q. Does a legal separation have any benefits?

A. While dissolution of marriage is typically the preferred route, there are couples who choose to legally separate because of certain specific benefits it carries. For example, legal separation is reversible, meaning that if the parties wish to do so they may return to their married status by simply informing the court they wish to do so. Conversely, after a divorce decree is entered, there is no turning back. Parties who once again wish to be married to each must start anew.

Other benefits include compliance with religious doctrine, as well as financial reasons such as the ability to continue receiving health insurance coverage by the other party's employer, and spousal military benefits. Our attorneys at Quinn & Dworakowski, LLP can advise you as to whether legal separation is right for you.

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