2024 How Long Do You Have to Be Separated Before Divorce in California?

Divorce is different in every state. Many couples choose to separate before making a final decision about their marriage. To ensure couples make well-considered decisions, California mandates a waiting period. Because of this, couples may ask, “How long do you have to be separated before divorce in California?” While this waiting period can include a separation, it is not required.

Mandatory Waiting Period

California has a six-month waiting period before a divorce can be finalized. It begins with initiating the divorce and ends when the judge dissolves the marriage. This gives couples a reconciliation period to reconsider their decision and potentially reconcile their differences. It also allows both parties to emotionally and mentally prepare for the dissolution of their marriage.

The Legal Definition of Separation

Legal separation in California is not a formal court order but a state of mind and action. To be considered legally separated, you and your spouse must:

• Physically separate by living in separate residences, no longer sharing a bed, home, or room within your family home.
• Both have the intention of permanently ending the marriage.

Many couples choose to file for legal separation concurrently with their divorce petition, even though physical separation is often a precursor to divorce. Legal separation allows couples to establish a legal separation date, begin dividing assets, and assume certain responsibilities of divorced individuals.

During a legal separation, couples are able to work through issues such as:

• Child Custody: Determining who has the primary responsibility for making decisions about the children’s upbringing and where they will live.
• Child Visitation: Determining the specific schedule for time spent with the children.
• Child Support: Establishing financial support for the children based on the income of both parents and the time the children spend with each parent.
• Property Division: Dividing all assets owned by the couple, including retirement and bank accounts, real estate, personal belongings, and the house.
• Debt Allocation: Determining how to distribute debts such as credit card balances, personal loans, and tax liabilities.
• Spousal Support: Addressing the issue of whether one spouse should provide financial support to the other, and if so, how much and the duration of the payments.

Working through these issues can provide clarity and facilitate a smoother transition. While physical separation is common, it is not mandatory. Some couples may find it beneficial to remain in the same residence during the waiting period, especially due to childcare and financial reasons.

Living together during the waiting period can potentially introduce problems regarding the date of separation. The separation date is essential for determining the division of property, as assets acquired after separation are generally considered separate property.

Post-Waiting Period

After the mandatory waiting period ends, a divorce can move forward to its final stages if all the relevant matters have been resolved. If certain issues need to be finalized, additional time may be needed before the marriage is officially dissolved. Given how complex divorce is, and potential delays within the court system, a six-month divorce is usually unrealistic.

Important Distinctions Between Legal Separation and Divorce

There are some important distinctions between legal separation and divorce you should be aware of if you are unsure which path you should take:

• Neither spouse can remarry while legally separated. Only after the divorce is finalized can either party do so.
• One spouse may still be required to maintain the other on their health insurance plan during legal separation.
• A legal separation has no fixed duration. Couples can choose to remain legally separated for as long as they wish.
• Some couples opt for legal separation instead of divorce due to religious beliefs and other factors.

Consult With an Attorney if You’re Considering Separation

We highly recommend consulting with a divorce attorney when considering separation or divorce. Even if you feel that your situation is straightforward, legal complexities can come up, especially when it comes to property division, spousal support, and child support and custody.

FAQs

Q: How Is Legal Separation Different From Divorce?

A: Legal separation is where a couple remains married while living apart. It allows them to address issues such as property division, spousal support, and child custody. It also allows couples to reconcile and end their legal separation if they choose. Divorce legally dissolves the marriage and is a permanent decision.

Q: Does Legal Separation Affect Property Division?

A: Yes, legal separation can affect property division, and California is a “community property” state. As soon as a couple is legally separated, all property they acquire during separation is considered separate property. This is why it is important to file a legal separation petition, as that puts a date on what will be considered separate property and what is considered marital property.

Q: Can I Remarry After a Legal Separation?

A: No, you cannot remarry after a legal separation because you are still legally married. A legal separation allows spouses to live apart and divide assets, debts, and responsibilities without legally ending their marriage. If you wish to remarry, a full dissolution of the marriage must be attained. Additionally, there is a waiting period for remarriage following the final divorce decree.

Q: Do We Need to Meet Residency Requirements for Legal Separation?

A: You do not need to meet residency requirements for a legal separation in California. While a divorce requires one spouse to have lived in California for at least six months and in the county where the divorce is filed for at least three months, there is no such requirement for legal separation.

Q: Is It Necessary to Have a Lawyer for a Legal Separation in California?

A: While it is not mandatory to have a lawyer in California during a legal separation, it is highly recommended that you consult with a family law attorney to ensure your rights are protected, you are able to navigate the legal complexities involved, you understand the process, and you avoid common mistakes.

Schedule Your Divorce Consultation Today

If you are ready to start a new chapter in your life, we can help. Our experienced family law attorneys at The Goldberg Legal Group are dedicated to helping clients get through the divorce process as efficiently as possible. Contact us today for a consultation.