Articles Posted in Legal Separation

broken-heart-1166622 (1)There are many reasons a marriage may come to an end. Whatever the issues or differences between the parties, more often than not, they will seek a divorce or legal separation. But in some cases, one or both spouses may want to “annul” the marriage – essentially to declare the union invalid, as if it never existed in the first place. It is important to understand the legal, financial, and practical ramifications associated with seeking an annulment versus seeking a divorce. If you are considering a divorce, separation, or annulment, you are strongly encouraged to discuss these very distinct options with an experienced family law attorney from the San Diego area.

California law sets forth legal grounds upon which courts may grant an annulment, including whether: 1) the party filing for the annulment was under 18 at the time of the marriage; 2) one party was of “unsound mind” or lacked the ability to understand the effect of the marriage; 3) either party entered into the marriage due to fraud; 4) a party consented to the marriage by force; and 5) one of the parties was “physically incapacitated” (or incapable of consummating the relationship). In order to succeed in getting an annulment, you must prove to the court that at least one of these criteria applies to your marriage. Of course, each case is unique, and courts will review the particular circumstances of the situation to determine whether an annulment is appropriate.

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chemical-flasks-1238282.jpgIn a recent blog post, we reported on an issue of first impression before a state trial court in San Francisco. The controversy centered on a divorcing couple’s respective rights concerning the fate of their frozen embryos, created using reproductive technology. According to a news article, just last week the court ruled that the five fertilized embryos, frozen during the couple’s marriage, must be thawed and destroyed in accordance with a consent and agreement signed by the former spouses prior to their divorce.

This case, like many family law proceedings, involves emotional and personal issues. When ruling on issues that will affect a family’s life going forward, courts are required to follow established legal principles, rather than focus on each family member’s personal turmoil and struggles. While it may be difficult for a judge to separate emotional from practical considerations, courts must do so in order to follow the law. For this reason alone, if you are considering a separation or divorce, it is imperative that you understand your legal rights under your particular circumstances. An experienced family law attorney from the local San Diego area could guide you through the process while protecting your family’s rights.
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201-0-1151338.jpgCalifornia law clearly provides that community property is to be divided between the spouses in divorce. Community property is further identified as assets and debts acquired during the length of the marriage, with some exceptions. But despite the law’s seeming clarity, questions arise as to the intent and meaning of certain family code provisions relating to property division. When this happens, courts are often asked to step in and interpret the language in order to give full effect to the legislative purpose. It is important to fully understand how these provisions may affect your divorce case. The result could have a significant impact on your financial position going forward. Parties considering divorce are encouraged to consult with an experienced family law attorney from the San Diego area as soon as possible.

The California Supreme Court recently agreed to review an appellate court opinion that addressed the interpretation of Family Code Section 771(a). The statute provides, in pertinent part: “[t]he earnings and accumulations of a spouse . . . while living separate and apart from the other spouse, are the separate property of the spouse.” In this case, the parties were married in 1993. In 2006, the wife decided she was finished with the marriage and undertook certain tasks to separate the couple’s finances. She testified that they were simply “roommates” at this point. The wife filed for divorce in December 2008 and listed June 1, 2006 as the date of separation. The husband disagreed and listed January 2, 2009 as the date of separation – a few days after the wife filed the petition for divorce. He further modified that date to reflect July 1, 2011, the date the wife moved out of the marital home.
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2010-1244710-m.jpgDivorce is often an emotionally difficult process for all family members involved. For this reason, choosing to separate and divide up a family is usually the result of much thought and consideration on behalf of the spouses. But once the decision is made, the parties must take very seriously the myriad legal and financial implications in order to adequately protect their rights. Something as simple as the date of a court’s judgment of legal separation can have a wide-ranging impact on each spouse’s financial situation going forward. In order to understand how California’s family code and other applicable laws and rules can affect your case, it is important to contact a local San Diego family law attorney as soon as possible.

In a recent divorce case, Pearl v. Gerber, the parties argued over the date of separation for purposes of determining the length of the marriage. Under California law, the date of separation is significant for a variety of reasons. For one, it is the date after which the earnings or accumulations of each party are deemed the “separate property” of the person acquiring the earnings or accumulations. This means that anything a spouse earns after the date of separation is not considered community property and is therefore not subject to division. Additionally, the date of separation is important when determining the length of a marriage for purposes of calculating the amount of spousal support. Both issues can have a dramatic impact on the respective financial rights of the parties.
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mobile-phone-in-hand-1307594-m.jpgThe California Family Code applies to parties seeking a divorce or legal separation, among other things. For quite some time now, California has been a “no-fault” state, permitting one spouse or the other to seek a divorce or separation without citing any particular fault on behalf of the other. The laws governing divorce proceedings vary to some extent from state to state. For this reason alone, it is imperative that you consult with a family law attorney from California, and specifically from the San Diego area. Local, experienced counsel would be able to effectively protect your legal rights at every stage of the proceedings.

Depending on the state you are in, the date of separation may impact important aspects of your divorce case. Interestingly enough, a recent family law case out of Maryland has been garnering some attention, most notably for its subject matter. Here, the couple married in 2006 and since March 2011, they split up and never lived in the same house again. The husband amended an earlier complaint to request divorce based on a 12-month uninterrupted separation. His wife moved to dismiss the complaint alleging that they had cohabitated and engaged in marital relations during the 12-month time period. If wife’s assertion was true, the “separation clock” would have to start all over again.

The husband admitted to communicating with his wife via text messages and phone conversations. According to the facts of this case, there were times when these conversations and text messages were of an explicit or provocative sexual nature. Husband also admitted that he had engaged in phone sex with his wife, and stated that the last time he did so was in January 2012. These specific facts are important to cases arising under Maryland law, which allows for divorce based on a 12-month separation period. Under the law, the parties must live separate and apart without cohabitation for 12 months without interruption prior to the filing for divorce. The circuit court dismissed husband’s complaint finding that he and his wife engaged in phone sex within the 12-month separation period. The court of appeals reversed finding that, “occasional instances of telephonic or electronic communication talking about sex, unaccompanied by intimate physical sexual contact, do not rise to the level of cohabitation.”
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usamap-jpg-1417432-m.jpgDivorce cases can vary in many respects. Sometimes only one of the parties wants to dissolve the marriage and in other cases, both parties do. Either way California residents must follow local state laws when initiating divorce proceedings. Because there are many important legal steps to follow at the outset of a case, parties are encouraged to contact a local San Diego family law attorney before filing any papers with the courts. An experienced attorney can help the parties to protect their rights and move the case along efficiently.

In a recent divorce case, the husband and wife each filed for divorce – but in separate states: the husband in California, the wife in Colorado. Before the marriage both parties had strong ties to California. The husband founded a company in Mountain View (in 1992) and later lived in Palo Alto, and the wife graduated from Stanford University and received a law degree from the University of California at Berkeley. She was admitted to the Bar in California in 1987. But after their marriage in California in 1999, the couple moved and raised their three children mainly in Aspen, Colorado.

Further, between 2002 and 2011, the couple paid state income taxes only to Colorado, had Colorado driver’s licenses and had registered to vote in Colorado. Despite these facts, the couple retained ties to California. They owned various properties in the state, and in 2001, founded a company in Sunnyvale, California. Essentially, the husband worked in Sunnyvale during the week and returned to Colorado on the weekends. In late 2011 or early 2012, the parties separated and the husband moved out of the Aspen home and moved into one of their Los Altos homes. The mother and children stayed in Colorado.
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2010-1244710-m.jpgMaking the decision to dissolve a marriage is no easy matter. There are many serious emotional and financial considerations for the parties to weigh. But once the spouses choose to divorce, they must both understand the legal implications of every action they take, especially when there is community property and/or children involved. One of the most significant questions that can arise early in the proceedings is the date of separation. Parties may not agree to what that date is, and more importantly, they may not realize the extent to which it can factor into the proceedings. A local San Diego family law attorney who has extensive experience handling divorce cases would be able to protect your rights and guide you through the process from the very beginning.

In California, there are three ways to end a marriage: by divorce, legal separation and annulment. California is a “no-fault” divorce state, which means that the party who is asking for the divorce is not obligated to prove that the other spouse did anything wrong. Even though parties are not required to find fault in the other party’s behavior, they still may not agree on some very relevant aspects of the proceedings. For example, parties often disagree as to the date of separation because it can identify a point in time when property or debt ceases to belong to both spouses. Judges are often called upon to settle the issue as it can impact whether a certain asset belongs to either or both of them.

In a recent case, the court of appeals was asked to determine (among many other issues) the date of a divorcing couple’s separation, in order to sort through the division of marital property. There were two separate residences and various other income and assets that the court was expected to identify and divide between the parties. Here, the husband claimed that the date of separation was February 2005, when the wife first filed this divorce action. The wife claimed it was in 2010, when she filed an amended petition for divorce. According to the lower court record, between 2005 and 2010, the parties resumed living together, filed joint tax returns, slept in the same bedroom, took Christmas photos, went on family vacations together and “had normal marital relations.”
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What To Do If Your Spouse Files for Legal Separation: It’s scary to receive service of legal documents, especially if you weren’t expecting them. And when a spouse files for legal separation, there is also an emotional component that can cloud your judgment and lead to critical consequences. A San Diego divorce lawyer can provide the expertise and experience to protect your rights and help you obtain a fair settlement.

A legal separation is similar to a divorce in that it divides property and debt and determines custody, visitation and support issues for children of the marriage. The most significant difference is that parties are not free to remarry. It will be necessary to obtain a divorce in order to remarry and many do not want to go through the procedure twice.

Your first step is to carefully read the papers you were served. What is your spouse asking for? Are the demands reasonable? Your next step should be to call an attorney immediately for the most appropriate strategies and techniques for your individual case. Your lawyer will review the papers and talk with you about the facts of your situation. The attorney will be able to advise you about the best course of action for you to take.

As the legal separation proceeds, you will be required to provide a Declaration of Income and Expenses as well as a Schedule of Assets and Debts. It’s a violation of the law to attempt to conceal assets and there can be severe sanctions and punishments for a willful concealment
Many spouses respond to a legal separation action by filing for divorce. This may give you the advantage of making the break clean and complete and not having to file again for a divorce. California is a no-fault divorce state; therefore, allegations of wrongdoing such as infidelity are usually irrelevant. However, financial wrongdoing such as breach of fiduciary duty or failure to disclose assets can impact the terms of the property settlement. Another important thing to remember is that neither party can stop the divorce unilaterally. All they can do is delay the proceedings, which can also result in substantial penalties if the court determines that delaying tactics were used.

The best way to decide how to proceed is to consult with a qualified attorney. By letting an attorney review the facts of your situation, he can help you determine how to proceed.

Is there anything you shouldn’t do? As a general rule, you shouldn’t sign any agreements without letting your attorney review them first. Strictly follow any court orders. For example, if your spouse has obtained a protective order banning you from the family home, do not go to the home without the court’s permission, even if invited by the spouse who obtained the protective order. Finally, you shouldn’t place children in the middle of the dispute with your spouse, no matter what circumstances exist.
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San Diego legal separation and divorce have both similarities and differences. It is also important to understand how a legal separation differs from a trial separation. A trial separation is generally a temporary break anticipating a reconciliation once critical issues have been resolved. In a trial separation, property and debt remain undivided. A trial separation may or may not lead to divorce.

Most legal separations, though, ultimately end in divorce. In fact, a common response to one party filing for legal separation is the other party filing for divorce. For a legal separation, a Petition and Summons needs to be filed which will set the date of separation.

One popular selling point for legal separation is health insurance. Since the parties are still legally married, health insurance eligibility continues. This can be an important factor, especially if an existing health conditions renders one spouse difficult to insure, while the other spouse has employer-sponsored health insurance benefits. There are several other common reasons to seek legal separation instead of divorce. For example, one or both parties does not believe in divorce as a matter of religious belief. One spouse needs to wait to file for divorce in order to qualify for benefits under the other spouse’s Social Security record. In some cases, the parties have not resided in California long enough to file for divorce and the only option is a legal separation.

There is no residency requirement for a legal separation as opposed to a divorce which requires residency in the State of California for at least six month and in the County of San Diego for at least three months prior to filing. While a divorce takes a minimum of six months to obtain a legal judgment of divorce, a legal separation can be obtained immediately, especially if the parties are able to agree on settlement terms. A legal separation settles all property and custody issues between the parties. However, neither party is free to remarry until a divorce has been obtained. Divorce is not automatic after a period of legal separation; additional procedures are required to obtain a divorce.

If the parties are unable to agree on settlement terms, settlement issues will be determined by the court. Once the initial filing has been completed, the court may set a Mandatory Settlement Conference. If there are unresolved issues, the case will proceed to trial. However, the majority of cases are settled with a Marriage Settlement Agreement and without proceeding to trial.

Both parties are mandated to file an Income and Expense Declaration as well as a Schedule of Assets and Debts. Self-employed individuals must provide copies of tax records while employed individuals are required to submit three recent pay stubs.
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