Can You Amend a Legal Separation to a Divorce in California?

By Teo Spengler

In California, it's a spouse's right to change his mind. If you file a petition for legal separation, you are free to alter it to a petition for divorce, as long as you do so before the judgment is entered. The procedure for amending varies, depending upon which stage in the proceeding you decide to make the change.

In California, it's a spouse's right to change his mind. If you file a petition for legal separation, you are free to alter it to a petition for divorce, as long as you do so before the judgment is entered. The procedure for amending varies, depending upon which stage in the proceeding you decide to make the change.

Legal Separation vs. Divorce

In California, a legal separation offers many of the same benefits as a divorce -- it separates a couple's finances and the child custody arrangements, except that it is not a divorce. When one or both spouses' religious beliefs forbid divorce, legal separation is a viable option. A spouse might also opt to file for legal separation if neither spouse has met the six-month residency requirement to file for a California divorce.

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Amending the Petition

The same judicial counsel form -- FL 100 -- is used to petition for divorce and for legal separation. If you want to amend the separation petition to ask for a divorce, you file a second petition entitled, Amended Petition, that contains the change. If your spouse hasn't yet responded to the original petition, all you need to do is file and serve the amended petition. If your spouse has responded, you must ask the court's permission to file the amended petition in an ex parte hearing or noticed motion. Many courts automatically allow the filing of an amended petition. The court does not charge you for filing an amended petition.

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How to Amend Divorce Papers

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What Is an Entry of Default for a Legal Separation?

A default in any type of litigation is a failure to respond when you're notified that someone is suing you. You might do so if you don't care about the result of the lawsuit, or if you feel that you have no valid defense. If your marriage is ending and your spouse files court papers for a legal separation, it could be a big mistake to allow an entry of default in the case.

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