When relationships become difficult and a couple is trying to determine whether or not they wish to stay together, there are more options than simply staying married, or getting a divorce. A third option is available to help couples decide what is best for them: separation. For the purposes of this article, we when we refer to a separation, we are referring to a LEGAL separation.
What are Differences between Separation and Divorce?
A separation can be beneficial for couples who are not ready to commit to the finality of a divorce. A legal separation allows the couple to live separately without putting an end to the marriage, and have the option to reconcile their relationship in the future, whereas a divorce is the legal ending or nullification of a legal marriage.
Some other differences between divorce and separation are that in a separation, a couple can often come to an agreement on how to settle their affairs without a “judgement” from the courts. These terms can be determined before the paperwork is even filed.
Like a divorce, a separation agreement outlines the rights and responsibilities of each party regarding assets, debts, child custody, support, and visitation, etc., but the agreement is not permanent. It is important to have a ‘separation agreement,’ similar to a divorce agreement, that can protect your interests until you decide if you want to end the relationship. If you choose to pursue a divorce after separation, the courts may simply transfer the terms of your separation agreement to the divorce agreement. Therefore, it is important to ensure that you are happy with the terms.
How do I get a separation or divorce?
The process for both separation and divorce are very similar. First, both parties must meet the states residency requirements. After you have determined you are able to file in your state, you submit the necessary paperwork and file a petition with the court. You can do this by yourself or hire an attorney to do this for you.
If the separation is mutual
If your separation is a mutual agreement between you and your spouse, you will file a separation agreement with the petition that covers any pertinent issues: child custody, where each of you will live, and rules and guidelines to dating and/or having other people around your children, and the length of time the separation will be in effect. If you are filing for divorce, some of these provisions, such as dating and length of time are not relevant since there is no option for reconciliation.
If both parties agree to all provisions, each will sign and notarize the agreement, and the court clerk will file it into the court records and a judge will approve it.
If the separation is not mutual
If the separation or divorce is not mutual, you will need to have your spouse served with a petition, and they will have the option to file a response and a counter petition. If you can’t come to an agreement, then mediation is usually used to help you come to an agreement. If mediation still does not bring a resolution, a judge will determine how to settle the issues at hand.
Once a judge has reviewed everything and signed the separation agreement, it will be filed
Copyright © 2016 TDC FAMILY LAW All Rights Reserved.
1210 SOUTH BASCOM AVENUE, SUITE 224
SAN JOSE, CALIFORNIA 95128-3535
TEL: 408-267-8484/FAX: 408-267-8489
Santa Clara County/San Mateo County San Jose, Santa Clara, Cupertino, Los Altos, Sunnyvale, Los Gatos, Monte Sereno, Saratoga, Palo Alto, Morgan Hill, Gilroy
DIVORCE/CHILD CUSTODY/CHILD VISITATION/CHILD SUPPORT/SPOUSAL SUPPORT/PERSONAL PROPERTY AND REAL PROPERTY DIVISION/CONTEMPT/MODIFICATIONS/DCSS/COURT APPEARANCES/PRIVATE SETTLEMENT JUDGE/EX PARTE MOTIONS/DOMESTIC VIOLENCE/RESTRAINING ORDERS/BUSINESS MATTERS/CONSULTING ATTORNEY IN MEDIATION/ REGISTERED DOMESTIC PARTNERS (RDP) AND SAME SEX MARRIAGES