When spouses encounter trouble in their marriage, they are not always ready or willing to take the decisive step of divorce but may opt instead to seek a legal separation. However, after some time or additional reflection, one or both spouses may decide that they prefer to obtain a divorce.
When this happens, they will need to convert the legal separation into a divorce. The process involved is relatively straightforward, but it does require adhering to specific steps in the legal system. If you need help converting a legal separation into a divorce, the San Diego divorce attorneys at Doppelt & Forney can assist you.
Converting a Legal Separation Proceeding Into a Divorce Proceeding
While many couples will live separately prior to a divorce becoming final, this is not the same as a legal separation. A legal separation is a specific status under California law that must be established by court proceedings.
Legally separated spouses are still legally married, and they retain some of the rights and responsibilities of marriage. For example, neither party has the freedom to remarry, and each party is entitled to spousal benefits through the other, such as employer-provided medical insurance. At the same time, a legal separation requires couples to address many of the same issues as a divorce proceeding: the division of assets, spousal support payments, child custody, and child support.
One advantage of filing for a legal separation is that, in California, neither party needs to meet a state residency requirement for obtaining a legal separation, whereas, in a divorce, at least one spouse needs to have resided within the state for a minimum of six months.
Whatever the reason for choosing a legal separation, it is sometimes the case that in the midst of the proceedings, one or the other party opts to seek a divorce instead. In these cases, as long as the legal separation has not been finalized, the party wanting a divorce may amend the petition for legal separation into a petition for divorce.
At that point, the proceedings will change to divorce proceedings, including the requirement of serving the other spouse with the amended petition. The amendment also starts a new “clock” on the proceedings, meaning that the parties must wait at least six months before any divorce decree will be issued.
Converting an Existing Legal Separation Into a Divorce
In some cases, parties who have already been granted a legal separation may decide to dissolve the marriage. In these cases, the proceedings are essentially the same as in any other divorce. The primary difference is that, due to the legal separation, many of the issues respecting the division of assets, spousal support, child custody, and child support have already been worked out. However, it is not necessarily the case that the court would not reconsider these matters.
In particular, since a legal separation often leaves in place certain matters that might change upon a divorce, such as the provision of medical insurance, the court will still look at the parties’ respective financial situations to determine whether any of the arrangements existing in the legal separation agreement warrants alteration in the divorce decree.
Generally speaking, if a legal separation has been in place for an extended period prior to the divorce, a court would be less likely to approve a dramatic departure from its provisions without good reason, particularly if both parties have been able to manage their separate affairs successfully under the existing agreement. For this reason, parties obtaining a legal separation should carefully consider the terms of any agreement that they make, given that they may carry substantial weight in any subsequent divorce proceeding.
Contact a San Diego Attorney for Guidance in Dissolving a Marriage
Many couples who initially seek a legal separation change their minds and decide to obtain a divorce. Since this is a fairly common scenario, California law allows individuals to convert a legal separation into a divorce, either during the process of obtaining the legal separation or after the legal separation has been finalized.
For a free in-person or virtual consultation to find out how we can assist you in converting a separation into a divorce, call the San Diego attorneys at Doppelt & Forney at 800.769.4748 or contact us online.
We represent people seeking to dissolve a marriage throughout the greater San Diego metropolitan area, including in Chula Vista, Oceanside, Carlsbad, Vista, La Jolla, Point Loma, Coronado, Del Mar, Ramona, El Cajon, and La Mesa.