San Diego Divorce Lawyer Blog
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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