Divorce and legal separation are some of the options to end your relationship in California. Many people look to divorce to completely end their marriage and fully sever their ties to their spouse, but many other couples use legal separation instead or as a temporary measure. These processes have many details and intricate legal issues that your attorney can explain. For now, we will investigate the difference between separation and divorce and whether filing for divorce automatically means you are legally separated. If you need help with your divorce case, call the Santa Barbara divorce lawyers at the Law Offices of Bamieh and De Smeth today for a free legal consultation.
Does Filing for Divorce Mean You Are Legally Separated in California?
Filing for legal separation and filing for divorce are very similar. Everything that comes after – child custody decisions, asset division, alimony orders, etc. – is also very similar. However, divorce and legal separation are still separate processes that require separate court filings.
When you file for divorce or separation, you typically use the same form (form FL-100), but that form has a box to check for divorce and a box to check for separation. This means that to file for legal separation, you need to specifically choose to file for legal separation – filing for divorce does not automatically separate you.
When you file for legal separation, you and your spouse begin living separately, dividing assets, dividing child custody, paying alimony, and otherwise separating yourselves from each other. In a divorce, you have to wait 6 months before these divisions will go into effect. However, you can choose to file for separation first, then amend your petition and change the case into a divorce case later after you’ve already divided assets, child care, etc.
Am I Legally Separated During the 6-Month Waiting Period for Divorce in California?
As mentioned, all divorce cases have a 6-month waiting period. Many couples treat this is a transition period and use the time to pack up their things, get ready to move, and otherwise get their affairs in order. Many couples also use the time to start working with their lawyers to form divorce agreements so that the divorce can move quickly once the waiting period is over. If spouses move apart during the waiting period, are they separated?
This is a complex point of law that you can discuss with your attorney for more information, but simply put: during the 6-month waiting period, you and your spouse might be separated, but you are not necessarily legally separated. Filing for legal separation requires going to court and specifically filing for legal separation. If you file for divorce instead, then you are not legally separated. Still, there is nothing stopping you and your spouse from moving apart, opening separate bank accounts, or otherwise beginning to live separate lives.
During the 6-month waiting period, you are not automatically legally separated, but you might still consider yourselves “separated.” This means you are still legally married and you still legally share assets and finances, but you might live separately and end your relationship. The date that you separate – whether formally or informally – is important to your divorce case.
Date of Separation in California Divorce Cases
In most divorce cases, the “date of separation” is important. If you and your spouse continued to live together and share finances up until the date that your divorce or legal separation was finalized, the date of separation would be the date that the case was finalized, and the court will not need to look at the date of separation. However, in most cases, couples will informally separate and stop acting like a married couple much earlier than the date the divorce is finalized.
This date is important for many reasons, but it is especially important in asset division. In a California marriage, any property acquired between the wedding day and the date of separation is known as “community property.” When you get divorced, you split this property 50/50, but you get to keep any property you owned before the marriage or after the separation.
In many cases, the date of separation does not refer to the date that you and your spouse were granted legal separation. Instead, it might refer to the date you moved out of the house to stay with a friend for a few months or the date when you left your shared bedroom to start sleeping in the guest room. Courts look at various factors to determine when the date of separation is, primarily looking at what the couple said about establishing themselves as separated and when they stopped acting like a married couple.
In many cases, couples set a firm date of separation themselves. This might be the day they file the divorce case if they go home to different houses afterwards. It may also be a date that they agreed on, whether in a verbal or written agreement. You can work with a lawyer to draft an agreement that you and your spouse can sign to firmly designate the date of divorce to help cut a clear line between individual and community property in your divorce case. Especially if you and your spouse will continue to live in the same house while you wait for your divorce to be finalized, it is important to use a separation agreement to clarify the details of your case.
Call Our Ventura Divorce Lawyers Today for a Free Legal Separation Consultation
If you and your spouse are considering getting divorced and want to know how legal separation will affect your case and whether filing for divorce is enough to make you legally separated, contact our law offices today. The Law Offices of Bamieh and De Smeth’s Ventura family law attorneys represent husbands and wives in divorce and separation cases to get them the legal outcomes they want. For a free legal consultation on your case, call our lawyers today at (805) 585-5056.