Legal Separation

For some couples, filing for legal separation instead of divorce is the preferred option. Unlike a divorce, a legal separation does not end the marriage. It does, however, allow a husband and wife to legally separate and settle certain matters, such as child custody, child support, spousal support, child visitation, and division of property issues, as if they were getting a divorce. Mello & Pickering, LLP will work with you to make decisions that will allow you to feel satisfied with the terms of your separation agreement.

There are many reasons why spouses want to legally separate but not get divorced—religion being one of them. Maintaining medical insurance eligibility and staying within a specific tax bracket are other reasons. A couple may also want to try a “temporary” separation while they are considering ending their marriage permanently.

Rather than a mere verbal agreement between the married couple, a legal separation helps to ensure that your finances and liabilities remain separate in the eyes of the law. A husband and wife that are legally separated cannot marry other people because they are still married to each other. A legal separation can always be converted into a divorce later on. It can also be reversed at any time.

Filing for Legal Separation In California

There are no residency requirements that have to be met in order to file for legal separation in California. Unlike a divorce, a legal separation allows a couple—if neither of them are California residents—to file for this status change without having to wait six months to establish residency.

A spouse filing for legal separation would follow a similar process as a spouse filing for divorce, including filing and serving a Petition for Legal Separation. Simultaneously with filing the Petition, a spouse can also request that a judge issue orders regarding child custody, child support, child visitation, property valuation and division, and separate maintenance—which is the term used in a legal separation to refer to spousal support. Separate maintenance may also be issued with a motion pendente lite (pending litigation) filed by one of the spouse’s attorneys. This motion can set the tone for future awards if a couple does end up getting divorced.

If you and your spouse wish to legally separate, it is important to have your own attorney who will make sure that your separate interests are taken care of and your rights are protected.

If the legal separation is agreed upon, both spouses have to sign an agreement saying that they have agreed to the separation terms before a court will grant the legal separation. In the event that certain matters prove difficult to agree upon, we will do our best to help you resolve—with the least amount of contentiousness—any disputes that may arise. We do not, however, believe in settling for the sake of settling. If you wish us to, we will litigate your case in court to make sure that you are not taken advantage of by the other party.

Attorneys Jennifer Mello and Traci Pickering are family law experts who are committed to helping their clients achieve a successful resolution in all family law matters, including cases involving prenuptial and postnuptial agreements, divorce, legal separation, spousal support, child support, child visitation, paternity, domestic violence and restraining orders, and property valuation and division issues.

Our family law firm is conveniently located in San Jose, California, and many of our clients reside in Santa Clara County, in Pleasanton, Morgan Hill, Saratoga, San Jose, Los Gatos, Santa Clara, Sunnyvale, Mountain View, Los Altos, Milpitas, Gilroy, Palo Alto, and Campbell.

We invite all prospective clients to contact us at mpllp@sjfamilylaw.com for an initial consultation. You can also call Mello & Pickering, LLP at (408) 288-7800.

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