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Legal Separation, Annulment or Divorce: Which One is Most Appropriate for You?

In San Diego, when parties are married, there are several ways in which there marital status will terminate. One is certain if they continue to be married: the passing of one of the spouses. Some spouses, however, terminate their marriage before death. The decision to file for a nullity, divorce or legal separation can have far ranging consequences. There are, in San Diego County, also petitions filed in San Diego Superior Court for both void and voidable marriages and there is also a category known as putative spouse. When your marriage ends and not due to one of the parties being deceased, then you have a choice to make when you petition and each has advantages and disadvantages: divorce; legal separation or annulment. This article focuses on the decision to file for a legal separation.

A legal separation in San Diego County allows a couple to live separately without bringing their marriage to an end. A legal separation is a petition and complaint and is filed in the San Diego Superior Court as is a divorce or motion for nullity. Many couples resort to a legal separation for a number of reasons, some being:

  • Religious compulsions that they will never divorce no matter what! There are still, as well, two countries in the world which do not have divorce: Philippines and Vatican City.
  • Issues of eligibility like residency requirements which may affect an immigration petition under the laws of the United States
  • For health insurance purposes as a legal separation will not trigger, in most employee based and family based medical insurance plans, a mandatory termination of the non member spouse’s medical coverage
  • A decision to live separately but unsure whether they want to walk the final step of divorce. The divorce rate is high in California and sometimes spouses file for any reason and without thinking about the consequences but some spouses want to consider and feel a legal separation will give them the time to do this.
Issues which have to be Addressed in Separation

However, while a legal separation allows a couple to live apart without ending a marriage they still have to resolve issues much like in a formal divorce. Typical issues which are to be decided on and which reflect in a separation agreement are: Division of marital assets and debts

  • Spousal support
  • Child custody
  • Child support
  • Visitation rights and schedule

The separation agreement can be used as a draft agreement if divorce is to follow. It can be, in fact, a prelude and if the couple eventually decides to divorce, the Judge may conclude that if the separation agreement was fair and worked well during the separation period, it could well be the blueprint of a divorce settlement which remains in perpetuity.

Advantages of Separation over Divorce

While there is remarkable similarity between a legal separation and divorce, separation has some distinct advantages over divorce. These are:

  • The couple has time to live apart during which they can reflect if divorce is really what they want
  • Certain benefits such as medical benefits continue which would come to an end in a divorce
  • It satisfies religious misgivings because you can still live separately but are not formally divorced
  • If you remain married as a military spouse for a period of ten years you may become entitled to benefits as set out under the Uniformed Services Former Spouse Protection Act
  • The spouse can also avail of some social security benefits if the marriage lasts for ten years or more but, as with USFSPA, the federal law governs and controls and thus no state court decision is binding on the federal government for benefits.
  • If a decision is eventually made to divorce the separation agreement can be the basis of a divorce settlement agreement
  • Sometimes a divorce could be a rush to judgment and a temporary separation is all that is needed to realize that two people do belong together and would like to continue as husband and wife.
A Firm with Experience

If you are contemplating divorce or marriage dissolution, you can avail of the services of Doppelt and Forney, APLC whether you are a resident of California or not if your family law case is being litigated in the San Diego Superior Court. This experienced family law firm practices out of San Diego and provides all legal services relating to divorce and separation including uncontested divorce, apart from the complete gamut of family law issues. The firm provides a free in-person or virtual consultation to help you know your rights and where you stand.

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