Separation or Divorce: Where to Start

When married partners consider divorce, they often begin the process with a separation. But separation isn’t the only step toward divorce. Divorce and separation are two different agreements, and one may be more appropriate for your situation than the other. Not all separations lead to divorce, and divorces don’t always require separations.

To decide what process is best for you, it may help to familiarize yourself with the different forms of both divorce and separation:

Types of Divorce

Divorces or Dissolution as it’s called in California come in several varieties, which differ based on how much mediation spouses seek. Some divorces, known as “uncontested divorces,” do not go to trial. A simple “summary dissolution” is even available in some cases, such as a marriage lasting less than 5 years involving no children or major assets.

To qualify for a summary dissolution, there are certain qualifications you’ll have to meet, such as having a shared debt between partners of less than $6,000. But consulting with a legal professional will clarify whether this could work for you.

In a mediated divorce, a negotiator works with both parties to reach an agreement. This option is beneficial for cases where potential disagreements can arise and both spouses wish to solve them without going to court.

Similarly, a collaborative divorce is more formal than mediation and is for relatively amicable circumstances that involves both spouses signing an agreement that they will use in the proceedings. This option uses attorneys who specialize in collaborative law and ends with a separate, final agreement.

Contested divorces are those in which circumstances are less than amicable. Disputes may be resolved through a form of mediation but sometimes, the divorce will go to trial.

Fortunately, California is a “no-fault” divorce state, meaning that two spouses may separate without one needing to grounds against the other such as mental cruelty or adultery. This legal standard doesn’t mean there won’t be disagreements requiring mediation or trial, however. Different expectations about anything from property to child custody may surface, which is why legal consultation is recommended for any type of divorce.

Types of Separation

A separation is not necessarily a step towards a divorce, though it can serve that purpose, as a legal separation can be carried out sooner than a divorce. In California, both parties must reside in the state for at least six months, including three months in the county where they file, if divorce is sought. A legal separation does not have such residency requirements. However, there may be similar requirements if children are involved.

There are other reasons a separation may be preferred to divorce. Spouses might choose to stay married for spiritual or ethical reasons. Separations can also be desirable in cases where social services, insurance, or even tax benefits are dependent on the marriage, which remains legally binding. The two partners should consider whether those benefits might outweigh the burdens of the marriage contract, at least for a time.

Less formal types of separation are also available, which like some divorces, might involve little to no legal intervention. A trial separation is the most informal type; it simply means that two spouses have decided to live apart from each other. It may never become “permanent” but it involves an agreement between spouses. Note that an oral agreement may prove difficult to uphold; legal advice can help make it more concrete.

A more permanent separation might raise further questions about everything from finances and assets to custody agreements. At this point, a formal separation agreement to mend such issues is typical: it may come together amicably but an experienced attorney can help iron out any complications that could arise.

We understand that choosing a course of action can seem overwhelming. If you would like help getting a divorce or separation underway, or if you’re uncertain about which path to take, contact Ricklin Family Law for guidance.

Ricklin & Associates

2625 Townsgate Road

Suite 330

Westlake Village, CA 91361

805-267-1132