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Can I Change My Filing for Legal Separation to a Divorce in San Diego and, if so, What are the Advantages and Disadvantages?


There are jurisdictional requirements to file either a legal separation or a divorce in San Diego Superior Court. These jurisdictional requirements must be met. For a divorce, the jurisdictional requirements are residency in San Diego for at least 90 days prior to the filing of the divorce petition and summons in San Diego Superior Court and live in California for at least 180 days prior to the filing of same. This time period must be concurrent [six months living California includes three months living in San Diego County] and not consecutive. This jurisdictional requirement, however, can be for both parties or for only one party. For example, the spouse who files for divorce in San Diego County must either (1) fulfill the residency requirements or (2) the other spouse must meet the residency requirements. As such, a spouse who lives out of San Diego and California can file for a divorce in San Diego if their spouse has lived in San Diego for over three months and California for over six months. This is contrasted with a legal separation in which the spouse must live in San Diego but does not have to live in San Diego for three months or California for six months.


A legal separation is started by filing the petition and summons for the legal separation. This is the same form as used for a divorce but a different box checked. A legal separation judgment will result in the exact same orders as a divorce for the family law issues of child custody, child visitation, division of assets, division of debts, spousal support and child support. The “best interest” standard used for the San Diego Judge to determine custody and visitation in a legal separation is the same for a divorce. The Disso Master program used to calculate temporary and permanent child support and temporary spousal support is the same whether a legal separation or a divorce.


Sometimes, spouses do not know if they way to divorce but know they have to legally separate. Sometimes, in addition, the spouse who is living in San Diego may not meet the jurisdictional requirements for a divorce. It is possible to file for a legal separation in San Diego Superior Court and then amend the Petition to a divorce afterwards however this cannot be done after a judgment for legal separation is granted by the San Diego Superior Court Judge. One of the benefits of a legal separation is that the non member spouse can continue to obtain health insurance benefits from the member employee spouse for many health plans. One of the disadvantages of a legal separation is that, if either of the spouses ever want to remarry, then a divorce will have to be filed and a judgment of divorce entered.


The law firm of Doppelt and Forney, APLC can assist you in making the decision whether to divorce or legally separate. Their office is conveniently located on the I-15 and has free parking and elevator access. They offer a complimentary and confidential consultation.

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