2011: Can You Amend Your Legal Separation Petition to a Divorce Petition (Dissolution of Marriage) in San Diego Superior Court?

In San Diego Superior Court, some spouses file a legal separation petition as opposed to a divorce petition. The reason for this may be religious or not wanting to ever remarry or for health coverage or that the residency requirement has not been met to file a divorce. In a legal separation, as opposed to a divorce, you cannot remarry unless you obtain a judgment of divorce. A legal separation judgment has all of the same issues resolved as with a divorce: custody; visitation; child support; spousal support and division of assets and debts. Some spouses, when they first legally separate, are very emotional and do not want to file a divorce. After time, some spouses decide they want to separate. Below is the procedure for amending the legal separation petition to a divorce petition.

In San Diego Superior Court, in order to file for a divorce, one party has to have been a resident of San Diego County for at least three months prior to filing a petition for dissolution and a resident of the State of California for at least six months prior to filing the petition. If this residency requirement has not been met, either party who is living in San Diego County can file for a legal separation. As such, some spouses file for legal separation and then wait the mandatory period for the residency requirement and then amend to a divorce.

An amended petition can be filed and there is no additional charge to the Court for this amended petition as long as a judgment of legal separation has not been entered. If no response has been filed, then the amended petition is filed and served. If a response is filed, than an ex parte hearing for leave to amend or a noticed motion is required under Code of Civil Procedure Section 472. If the judgment for legal separation has been entered, then another petition for divorce needs to be filed. Most Judges accept one amended petition “as a matter of right” and this is whether a response was filed. In some cases, a petition for legal separation is filed and a response to the legal separation is filed also requesting a legal separation. As with the petitioner, the respondent can also amend the response to ask for a divorce once the residency requirements have been met. In addition, a response to a legal separation can be for a divorce and, under California law, this is proper and the case will then proceed as a divorce and not a legal separation.

Why would a spouse want a legal separation instead of a divorce? Of course, there are many reasons but some of the most common are as follows. First, there are spouses whose religions do not sanction divorce and they will not divorce even though they could under California law. Second, some spouses never want to remarry and want to remain married to their current spouse but cannot continue in the day to day marital relationship and want to separate their assets and debts as well as have orders for their parenting plan as well as child support and spousal support. Third, and perhaps most common, is the continuation of health care coverage. Most employers will not provide health insurance coverage to a non married spouse. The cost of COBRA and individual plans, once the COBRA benefit is exhausted, can be unaffordable especially if the non member spouse [non employee who obtains their medical benefits from their employee spouse] is 50, 60, 70 or 80 years of age. As such, if remarriage will never be an issue, a legal separation can allow for the health insurance benefits for the non member [non employee] spouse to continue to obtain health insurance through the legally separated employee spouse’s medical coverage.

This can be complicated and, if you have any questions, please feel free to contact us for a complimentary virtual consultation.