Fair Cadora Blog
Posted By Kevin L. Cadora, Esq.
The differences between getting a divorce and getting a legal separation may seem many but there is really only one difference between the two; in a divorce you are returned to single status after judgment whereas you maintain your married status after a judgment for legal separation is granted. All issues in a divorce such as custody, visitation, child support, spousal support division of community assets and debts and attorney’s fees are handled exactly the same in a legal separation. The only difference is the parties remain married after judgment. Notwithstanding, obtaining a judgment for legal separation could have long last financial ramifications that a party must discuss with an experienced family law attorney and accountant before filing. In that case, why file for legal separation if all issues are disposed of by the court? There are three possible reasons to file for legal separation versus a divorce.
First, the parties’ religious and/or cultural beliefs prohibit divorce and therefore the parties remain married in order to maintain the parties’ religious and/or cultural beliefs. Religious and/or culture reasons to file for legal separation are rare but do occur from time to time.
Second, a party may want a divorce but neither party has been a resident of California for at least six months prior to filing, which is a requirement in order to file for divorce in California. Therefore, one party files for legal separation and once the party has been in California for six months, the party amends their petition to dissolution of marriage. There may be many strategic reasons to keep a case in California such as a party is pregnant and wants California to decide custody, visitation and support when the other parent is in another state or California’s family laws are more in a party’s favor than another state. Filing for legal separation and then filing for divorce after a party has been a resident of California for six months is purely strategic and should be discussed with an experienced family law attorney before pursuing.
Finally, a party may file for legal separation because they have a permanent disability and they require the other party’s insurance in order to maintain the marital standard of living. The parties agree to remain married so the disabled spousal can continue coverage under their spouse’s policy, which could off-set the supporting spouse’s spousal support obligation to a much lower level depending on what the supported spouse’s premiums would have been had the parties divorced. Again, filing for legal separation to keep a spouse on an insurance plan should be discussed with an experienced family law attorney before pursuing.
Another important point about legal separation is that the responding party must agree and consent to the legal separation. If the responding party seeks a divorce when the petitioner has filed for legal separation or the petitioner’s changes their mind before the entry of judgment, the court will grant the request for a dissolution of marriage over the party’s objection since California is a no fault state and parties may divorce based upon irreconcilable differences, which basically means for any reason. Filing for legal separation MUST be discussed with an experienced family law attorney as well as an accountant because health insurance coverage may continue unless otherwise agreed by the parties and there are tax ramifications for filing taxes married filing separately is also an important issue when deciding how to proceed with your family law matter.
Posted By Fair Cadora, APC
After six months of litigation and three days of trial, Attorney Cadora was successful in returning a young daughter to her father. The mother had removed the child from San Diego County after falsely accusing father of domestic violence and substance abuse that Attorney Cadora easily refuted at trial. Fair Cadora’s relentless search for the truth and justice resulted in a very favorable outcome for the client and his daughter.
Child move-away cases are extremely complicated, time consuming and expensive because the parties are entitled to a full hearing on the matter and a full custody evaluation. Factors the court considers include the nature of the custodial arrangement, the relationship between the parties, the relationship between the child and each parent, the distance of the move and the age and preference of the child. The court is also charged with determining whether to apply a best interest standard to the case or whether to apply the change in circumstances test based upon whether the matter was brought post judgment AND the parties do not share joint physical custody. All of the factors must be analyzed prior to taking any move-away matter to trial.
In this case, the mother moved the child to Orange County without a court order or consent of the father, which is required before a parent may move a child out of the county from which the custody order arose. The mother’s credibility was weakened by the fact that Father’s drug assessment came back negative and mother had no credible evidence of father’s alleged drug problem. However, the court was most concerned about mother moving the child without a court order or consent, which was the factor the court considered most important and was the basis for which the child was returned to her father in San Diego.
Congratulations to Attorney Cadora for a fantastic win and congratulations to the client and the reuniting with his daughter! To learn more about child custody and move away cases, contact Fair Cadora to schedule your free consultation.