Legal Separation

A legal separation is not just intended to give you and your spouse time to be away from each other. It is a procedure that permits a couple to live separately while remaining legally married and although your marriage is not lawfully terminated as in divorce, the action must still be done with approval of the court.

Frequently, legal separation causes many issues to come forth which will need to be properly addressed to avoid troubles both now and in the future, especially if legal separation becomes a prelude to divorce. A Tracy family lawyer, Pleasanton family lawyer, or San Diego family lawyer from Michael S. Martin, P.C. can help you to take up vital matters such as child support, property division, spousal support, child custody and visitation. By correctly resolving these issues now, it can save you money, time and conflict later on down the line.

For many years now, I have assisted locals when the need arose for compassionate legal assistance. Commonly, when the process of legal separation is begun, couples are in agreement with the idea of it. When working out how the property will be divided, who will have custody of the children, the need for spousal support and other issues, however, disagreements can arise. In addition, you must know what the State of California considers legally acceptable solutions to key issues in a separation. This is where having a dedicated lawyer can provide the resolutions you need.

Legal Separation versus Divorce

Many clients are initially confused about what the difference is between a dissolution of marriage (hereafter “divorce”) and a legal separation. As Tracy Family Law attorney and Pleasanton Family Law attorney John Stovall states, "A divorce is one of the only ways to legally become a single person again in the eyes of the law, other than death of either spouse and judgment of a nullity of marriage." On the other hand, a judgment for legal separation does not result in the termination of marital status (meaning you’re not divorced). Under both procedures you can divide property, set custody and visitation, and adjudicate support.

Why choose a legal separation over a divorce? There might be several reasons why a person might choose a legal separation over a divorce. First, the parties might not meet the residency requirement for dissolution. A person must be a resident of the state for at least six months prior to filing a dissolution proceeding within the state and must be a resident of the county for at least three months immediately preceding the filing of a dissolution action. These residency requirements do not apply in a proceeding for legal separation. San Diego Family Law Attorney Michael Martin points out "Sometimes I recommend clients to initially file for legal separation if they do not meet these requirements and we can then convert the case to Dissolution when the requirements are met.  This is also advantageous because you can “count” the time from the legal separation towards the six month minimum time requirement for a dissolution.  This also helps if my client is concerned the other party might file first outside the State of California or the county."

Secondly, there could be religious reasons why one party might file for legal separation instead of divorce. If a person’s religious beliefs prevent them from seeking a divorce, a legal separation will provide the benefits of a divorce without terminating the status of being a married person.  This will enable them to seek a court order dividing property, set amounts for child and/or spousal support, set child custody orders, and make other necessary orders.

Thirdly, there could be other personal reasons such as their spouse maintaining their medical insurance. Since a legal separation does not terminate marital status, it leaves open the possibility of remaining eligible under your spouse’s health insurance policy.  Additionally, maintaining a marital status may be beneficial for financial purposes.  At times, the financial consequences of divorce including the maintenance of tax benefits, how health care will be handled, the operation of a joint business or property that you own together may make legal separation the right choice.

We can review these and other reasons you may have for legal separation versus divorce towards reaching a conclusion that will work best for you and your family.

To learn how legal separation may be the right solution for you and your spouse, contact a San Joaquin County, Alameda County, or San Diego County family law attorney for help.

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As a former prosecutor, I have handled an extensive and heavy caseload and spent countless hours negotiating with other attorneys and preparing for and taking cases to trial. As a prosecutor I handled over 500 arraignments, 40 cases to resolution, and five jury trials, including a six week special circumstance homicide trial, as a second chair attorney. It is this experience that I will bring to your case. You can be assured, my office will communicate with you as your case develops and zealously represent you. While my office handles a variety of types of cases I have dedicated a majority of my practice to representation in criminal law, bankruptcy, and personal injury.