Articles Posted in Legal Separation

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It is not uncommon for spouses who have filed for divorce to question their decision to end the marriage multiple times throughout the process. Getting a divorce is life-changing for both spouses. Sometimes, after one or both parties realize the implications of divorce, they begin to reconsider whether their differences are really “irreconcilable”. If you have filed for divorce, but would like to take a step back from the proceeding to reassess your decision, there are a few options to consider.

Reconciliation: If you and your spouse have made the decision to reconcile and no longer wish to pursue a divorce, you may dismiss your divorce petition. Once you dismiss your divorce case your proceeding will end, but neither side will receive a refund of any fees or costs expended pursuing a divorce. This is an important consideration because if the divorce petition is dismissed, but you later decide to re-file for divorce, both parties will have to pay their respective $435.00 filing fees just to file their initial paperwork.

Legal Separation: If you are not ready to obtain a divorce, but also are not interested in reconciliation, you have the option to convert your divorce petition into a petition for legal separation. Through the legal separation process, the parties can obtain similar orders as through the divorce process such as support orders, custody and visitation orders and property division orders. After making a request for legal separation, the court will continue to track your case setting status conferences and encouraging you and your spouse move through the system. If you change your mind later, you also have the option to revert back to the divorce process and terminate your marital status.Suspend the Proceedings: While parties are attempting to decide whether to continue with the divorce or legal separation process, they have the option to suspend the divorce process through agreement. The parties or their attorneys can prepare a stipulation and order that is filed with the court that will put the entire case on hold. Divorce litigants are not be required to fulfill deadlines and make court appearances while their divorce case is suspended. You may also want to suspend the proceedings if you and your spouse have decided to get a divorce, but cannot actively participate in the process. Parties may agree to suspend the divorce process for medical reasons, work-related concerns, or even issues related to their minor children.
If you are trying to navigate the procedural options for your divorce, it is important to consult with an experienced family law attorney to learn the implications of each option.
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The term “Legal Separation” and “Dissolution” are distinctly different in that a legal separation does not result in dissolving the marriage itself, while a dissolution of marriage does indeed dissolve the marriage and will return the parties to their single status. There are several reasons why a spouse may want to file a petition for legal separation rather than a petition for dissolution of marriage. Some common reasons are because of the person’s religious background, an interest to maintain certain healthcare benefits, or perhaps because the parties do not qualify to file for divorce because they have not met the residency requirement (there is no residency requirement to file a petition for legal separation in California).

If you initially filed for a legal separation for one of the reasons listed above or for any other reason, but you decide that would prefer a divorce, then you will need to convert your case into one for divorce. In California, you are able to convert your legal separation to a divorce at any point during the legal process, even after your legal separation is final. Either spouse can be the one to request that the legal separation be converted into a dissolution of marriage.

If a judgment of legal separation has not yet been obtained (meaning that you have filed your petition for legal separation but the proceedings are still pending) and your spouse has not yet responded to your petition, then so long as the residency requirement is met, you (the Petitioner) can simply file an amended petition and check the box for “Dissolution of Marriage”. Your spouse will need to be served again with the amended Petition. However, if a judgment of legal separation has not yet been obtained but your spouse has already filed his or her Response to your original Petition for Legal Separation, then you may need to request approval from the Court.If a judgment of legal separation has already been obtained from the court and you later decide that you would prefer a divorce, then you cannot just file an amended petition. Instead, you will need to start over with a new case by filing a petition for dissolution of marriage and pay the filing fee again.

Regardless of the status of the petition for legal separation, either spouse can petition the Court for dissolution of marriage. Because of this, it is typically better to simply petition for dissolution of marriage from the get-go unless both parties agree to the legal separation or a legal separation would benefit one or both parties. Also, it is important to keep in mind that the six month waiting period to be returned to single status does not start ticking until the Petition for Dissolution of Marriage has been served on the Respondent, despite the status of the petition for legal separation.
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Word is out that actress Hilary Duff and ex-hockey player Mike Comrie have separated and are on the road to a divorce. The couple married in August 2010 and Duff gave birth to their son, Luca, in March 2012. According to TMZ, the couple has mutually agreed upon having an amicable separation and they intend to share joint custody of their son. They even plan on remaining best friends after the divorce.

So often we hear of couples who have just decided to separate or divorce and they are full of feeling of anger, resentment, and shock. But cases like Duff and Comrie who actually seem to be quite pleasant as they separate make you wonder if they did something different from the start. Perhaps the way they informed each other of their desire for a separation/divorce was done in a manner to minimize those heightened emotions that we so often hear about.

The way you break the news to your spouse about your impending separation or divorce can really play a part in laying the foundation for how your divorce will play out. Most people remember the precise details about how his or her spouse broke the news that he or she wanted a divorce. Those parting words will inevitably be extremely difficult but there are certain approaches that may lead to a better parting for both parties.Choose the Right Words: Choosing your words carefully will help to increase the amount of conversation that you provoke from your spouse and decrease the amount of shock that he or she will inevitably experience. Perhaps you are just pondering the thought of divorce, or you are interested in a trial separation. Or maybe you have made up your mind that you want a divorce. Whichever path you have chosen to take, it is important to be clear with your spouse by clearly specifying the degree of finality that you want. For instance, if you are not completely set of the idea of divorce and still just pondering the possibility, you probably don’t want to come out and say to your spouse, “I want a divorce!” Rather, you could approach your spouse by explaining that your relationship doesn’t seem to be improving and inquire what he/she thinks about a separation. This will allow your spouse the opportunity to engage in a conversation with you rather than feeling completely and utterly shocked and merely focused on the word “divorce.”

On the other hand, if you are certain that a divorce is what you want or need, you might want to approach the conversation in a more gentle manner and in the right time and place as to avoid or at least reduce a sudden fury. Your spouse will probably already be devastated at hearing the words “I want a divorce,” so deliberately hurting your spouse’s feelings on top of that and already showing greed about what you want in the divorce will only serve to heighten his/her anger, resentment and urge to be litigious.

Your actions and words will have corresponding reactions. So although a few
words so early on might not seem like a big deal, the choices you make when breaking the news to your spouse that you want a divorce may very well affect your entire divorce process and your life in the future.
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The National Network to End Domestic Violence recently spoke out against proposed Senate Bill 518, “The Healthy Marriages Act,” which would extend the waiting period for a divorce in North Carolina to two years and require the couple to complete courses on communication skills and conflict resolution. Further, if there are children the bill proposes that the couple complete a four hour course on the impact of divorce on children. While this may seem like a good idea, the women’s group mentioned above argued that the bill, filed by Sen. Austin Allran, R-Catawba, would increase the danger of abuse for women because “the most dangerous time for a battered woman is after she takes steps to leave the relationship.”

North Carolina’s current one year waiting period is one of the longest waiting periods in the nation. In San Diego, however, no couple can become divorced quicker than in six months. California Family Code Section 2339 sets forth the mandatory six-month waiting period until a divorce can actually become finalized by the court. The waiting period does not begin until the divorce petition is filed and the other party is properly served. This essentially means that the court cannot restore “single person” status until this six-month waiting period has lapsed. Thus, neither the person filing for divorce (Petitioner) nor the party being served with the petition (Respondent) can remarry or file taxes separately until such time as the court has granted the individual’s request to have his/her status restored as a single person.

Read answers to FAQs about family law from the divorce attorneys at the firm

The purpose of this waiting period, whether it be two years (as proposed in Senate Bill 518) or 6 months (in San Diego), is to give spouses the opportunity to make sure that they do not change their mind about going through the divorce process. During the waiting period, the spouses are not allowed to enter into another marriage, which provides the spouses with the potential for reconciliation. Furthermore, the waiting period is meant to give the parties and their attorneys time to prepare for a divorce settlement or trial. Family lawyers will advise their clients to begin gathering financial documents, and will begin to investigate important issues related to the parenting of children, if applicable.

But how long is too long for a divorce waiting period? Some San Diego divorce attorneys may agree with the National Network to End Domestic Violence, and would argue that if California’s waiting period were to be extended to a year, or even two years, it might unjustifiably increase the danger of abuse for women. This is especially the case where Husband and Wife remain living together pending divorce. As family lawyers are all too aware, in these economic time it may take some time for the marital residence to be sold, and often times there is not enough money to maintain two households. If such a bill were to be proposed here in California, perhaps it should include an exception clause for cases involving domestic violence or abuse. Luckily for those seeking divorce in San Diego, this is not an issue as of yet. The six-month waiting period remains in effect for the time being.

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There many paths to ending a marriage in San Diego – including settlement, trial, uncontested divorce and simplified divorce. Many couples struggle for months and even years to work out the complex issues involved in divorce such as property division, support, and custody and visitation. Dutch entrepreneur, Jim Halfens, created a new method of divorce used in the Netherlands called the “Divorce Hotel”. Using this method, a couple checks into the Divorce Hotel on a Friday, and with the help of family law attorneys and mediators, checks out on Sunday with divorce papers in hand. Instead of the typical hourly rate, the couple pays a flat fee for their stay in the Divorce Hotel.After experiencing great success in the Netherlands, Halfens is attempting to bring his novel concept to the United States, which is known for its extraordinary divorce rate. Halfens is not only negotiating with hotels and local family law attorneys, but also with television production companies. Halfens is attempting to start a new reality show which follows the couples through their stay at the Divorce Hotel. Many prominent divorce lawyers have expressed serious doubts about the practicality of Halfens’ concept. These attorneys are concerned that most divorces are too complex and/or acrimonious to be completed in a single weekend. U.S. divorce attorneys do agree that the concept may be successful in cases where the divorcing couple remains on friendly terms and has a relatively straightforward marital estate to divide.

Read more about uncontested divorce here

Many obstacles can prevent the Divorce Hotel method from succeeding. A divorce proceeding can be dragged out because spouses often hide money, undervalue assets, and perpetrate fraud. Discovering these inconsistencies and seeking out the truth regarding the marital estate takes time, money, and a lot of effort by experienced family law attorneys. This work can skyrocket the cost of a divorce by increasing costs, fees, and may even require hiring an expensive expert. In order to combat this reality, Halfens screens the couples that apply to stay at the Divorce Hotel. His team tries to weed out its applicants and only admit those who are willing to mediate and work together to reach a solution. Couples who bicker or barely speak to each other are rejected.

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As we have previously blogged, Ashton Kutcher and Demi Moore separated nearly a year ago. However, neither party had filed for divorce, until now. Early on the parties claimed to be working out all of the details of their marital settlement before involving the court system in their divorce. Despite their year-long attempt at an amicable resolution, Kutcher filed for divorce shortly before Christmas. Media outlets speculate that Kutcher’s new girlfriend, Mila Kunis, may have pressured him to file. This is based on the theory that Kutcher intended to give Moore time to heal from the couple’s traumatic split and that Kunis could no longer handle letting Moore still have that much control. Besides the emotional implications involved, there are a few legal ramifications of filing for divorce that might have appealed to Kutcher and prompted him to finally take this step.

In California there is a mandatory six-month waiting period between when a spouse files for divorce and when the court has the ability to terminate his or her marital status. This means that if Kutcher intends to re-marry within the next year or so, filing a Petition for Dissolution of Marriage six months prior to that date would be necessary. Even if Kutcher and Moore agreed upon a final settlement of their estate and submitted their agreement to the court, they would still remain legally married until the six month waiting period had passed.

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After eight years of marriage to the famous actor, Dennis Quaid’s wife, Kimberly Buffington, recently filed for legal separation. In March of 2012 Buffington filed a petition for dissolution of marriage citing “discord or conflict of personalities” as the reason for the split. However, just three months after she filed, Buffington withdrew her divorce petition. The couple seemed to be working on their relationship when they celebrated their eight-year anniversary in Bora Bora. In her petition for legal separation Buffington requested joint legal and physical custody of the couple’s twins. Additionally, Buffington asked the court to award her spousal support and order Quaid to contribute toward her attorney fees and court costs.

Quaid and Buffington recently moved to California from Texas. Although Buffington filed for legal separation, she reportedly intends to file for a full divorce once the six-month waiting period has expired. In California, only parties who have resided in the state for a minimum of six months may file for divorce in California family courts. Deciding to file for legal separation or divorce is an important decision. If a party files for legal separation, the court has the ability to make custody and visitation, support, and property division orders. Unlike in divorce proceedings, there is no requisite waiting period to obtain a legal separation.

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