Eugene E. Kinsey, Attorney at Law

323 Main St., 2nd Floor, Seal Beach, CA 90740

LEGAL SEPARATION

IN CALIFORNIA

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Since 1976
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General Information Re Legal Separation In California

Although California legal separation proceedings can be maintained on the same grounds as divorce actions, a judgment of legal separation does not terminate marital status of the parties as husband and wife. It is an alternative to dissolution and is generally sought upon breakdown of the marriage where for religious or other personal reasons the petitioner does not want the legal status relationship absolutely severed.

One very common reason to seek a legal separation instead of a dissolution (divorce) is to retain eligibility for medical insurance that would otherwise be lost by a termination of the marriage.

A legal separation proceeding is similar to any marriage termination proceeding in that a judgment of legal separation adjudicates support, custody/visitation and community property rights and obligations under the same standards and in the same manner as a judgment of dissolution.

Unlike a dissolution (divorce), a judgment of legal separation leaves the marriage bonds intact. In effect, however, the parties remain "married" in name only, without the rights and responsibilities that attach to marital status. The parties to a legal separation action cannot enter into a new marriage unless and until the existing marriage is dissolved by death or judgment of dissolution; but the judgment finally adjudicates the financial issues between the parties, including determination of their support obligations and a division of their community estate.

After a judgment of legal separation, the parties do not acquire further community property and owe each other no spousal duties of care and support except as ordered by the court pursuant to the judgment.

The court may not enter a judgment of legal separation on a petition requesting same unless both parties consent thereto . . . except where the respondent has not made a general appearance (i.e., default cases). [Ca Fam § 2345] So, iif one spouse petitions for legal separation but the other responds with a request for marriage dissolution, legal separation may not be granted.

A judgment of legal separation does not foreclose a subsequent "status" action to dissolve the marriage. The court may grant a judgment of dissolution on either party's subsequent petition for dissolution.

California Legal Separation Procedure:

If your legal separation matter is either uncontested or default matter, the following 12 steps must be taken to obtain your California divorce.

Step 1: Choose The Proper Court
You will begin by answering a series of questions to make sure that the State of California has “jurisdiction” over the parties and issues in your case, that the case is filed in the proper county, and that you comply with local “venue” rules.

Step 2: Prepare, Download, And Print The “Initial Document Package”
After we have determined which is the proper court for your case, we will prepare the initial documents to be filed with the court.

Step 3: File The Initial Document Package With The Court
After your initial papers have been prepared and signed, we will file them with the court clerk.

Step 4: Serve The Initial Documents
After the documents have been filed with the court, they must be properly served on the opposing party. There are two ways to meet these “due process” requirements. Either your spouse can choose to accept service by signing an Acknowledgement Of Service or he/she must be formally served with the documents.

Step 5: Entry Of Default (If No Response Is Filed)
If your spouse has either signed a Acknowledgment Of Receipt or has been formally served with the Summons and Petition and has failed to respond within 30 days, he/she is “in default” and his/her default may, on your application, be entered by the court clerk. Once the default has been entered, the Respondent will be foreclosed from responding or appearing in the case unless he/she is able to successfully move to have the default vacated.

Step 6: Financial Disclosure
It is the policy of the State of California to insure a proper division of community property and to further insure that child and spousal support awards will be fair and equitable. To this end, California Family Code Section § 2100 et seq. mandates the exchange of prescribed "preliminary" and "final" declarations of disclosure, along with current income and expense declarations, in all marriage dissolution, legal separation and nullity actions. We'll prepare the financial disclosures for you and carefully review the disclosures coming from the other party.

Step 7: Prepare And Notarize A Marital Settlement Agreement
If we have served the Respondent with the Summons and Petition and he/she has defaulted (failed to file a Response) and your case is not going to settle by way of an agreement, you will skip this step and move to Step 8. However, if you are your spouse are going to settle the case by way of agreement, we will prepare an agreement which resolves all of the issues in your case. Generally these issues include:

    • Custody, Support, & Visitation Of Children

    • Spousal Support

    • Division Of Community Property\

    • Division Of Community Property Debts

    • Payment Of Attorney Fees & Costs Of Suit

Step 8: Prepare Order To Withhold Income For Child Support (Wage Garnishment)
Whenever a support order is made or modified, the court must include in the order an Order/Notice To Withhold Income For Child Support that directs the paying spouse’s employer to pay to the party receiving support that portion of the paying spouse’s earnings due or to become due as will be sufficient to pay (a) the support amount ordered by the court, and (b) an amount ordered to be paid toward liquidation of any arrearage.

Step 9: Prepare And File The “Judgment Package”
The end result and the final goal of the action for dissolution or marriage, legal separation, or nullity is to obtain a Judgment from the court. The Judgment dissolves the marriage and is a court order which resolves the issues between the parties such as child custody and visitation, child support, spousal support, property division, debt division, and the payment of attorney fees and costs. Whether you obtain that judgment with the agreement of the other party or after the other party’s default or after hearing of the matter at trial, a proposed “Judgment package” of documents must be prepared for submission to the court.

Step 10: Serve The Judgment
Where there are orders in the Judgment enforceable by contempt (such as child & spousal support orders or restraining orders) it is important that a conformed copy of the Judgment be personally served on the opposing party and that you obtain a proof of service of the Judgment. Failure to properly serve notice of any order enforceable by contempt on the other party may make it impossible for you to bring a contempt action later to enforce it.

Step 11: File The Child Support Case Registry Form (If Applicable)
If the court makes a child support order or a “family support” order containing child support orders, both parties must complete and file with the court a “Child Support Case Registry Form” (Form FL-191) containing information concerning the order to be placed on file with the State of California. This document is received by the court but not filed in the court file. It is sent to the State.

Step 12: Serve The Order To Withhold (Wage Garnishment) On Spouse’s Employer
In cases involving child or spousal support, the last step in the process is to serve your Order/Notice To Withhold Income For Child Support on your spouse’s employer so that the support can be withheld and paid to you.

 

Attorney Fees & Costs:

Choose Full Service Or Represent Yourself:

Assisted:
$750.00 Flat. You represent yourself in Court. Includes document prep. plus 2 hours of consultation and research if necessary.
Full Service:
Uncontested $3,000 Flat; Contested $300 per hour against a minimum fee of $3,000