A legal separation allows a couple to live separately but remain married. During a period of legal separation, neither spouse may remarry or enter a domestic partnership. The procedure for legal separation in California is very similar to that of divorce. Where appropriate, a court will decide on issues such as custody of children and division of property. To minimize both cost and paperwork, you should try to reach agreement with your spouse on as many issues as possible before commencing legal separation proceedings.
Decide on the grounds for your legal separation. Section 2310 of the California Family Code states that legal separation must be based on either incurable insanity or irreconcilable differences causing the irremediable breakdown of the marriage.
Obtain Form FL-100 Petition - Marriage either from your local county court or by downloading it from the California courts website. This form includes options for both dissolution of a marriage and legal separation. An attorney or online legal planner can help with this form.
Complete Form FL-100 and file it at your local county court. To choose the option for legal separation, you should check the appropriate box where indicated on the form. The form also requires you to provide information about minor children and property. You should complete the part of the form that requests legal separation based on either irreconcilable differences or incurable insanity. The form permits you to ask the court to make orders relating to child custody.
Complete Form FL-105/GC-120 if you have children under 18. This form constitutes a Declaration under the Uniform Child Custody Jurisdiction and Enforcement Act. The form provides information to the court that enables it to establish whether it has jurisdiction over a child. This is relevant, for example, if one of the parents lives in another state and has already instituted proceedings for child custody in that state.
Ask the court’s family law facilitator or self-help center to review your forms and check that you have completed them correctly. Alternatively, you can seek advice from a specialist family law attorney or online legal assistant.
Pay the filing fee. If you receive public benefits or have a low income, you may be eligible to apply for a fee waiver. Your local court can provide the relevant information.
Serve your spouse with a copy of the court papers. The person who serves the papers must be over the age of 18 and can be either a friend, relative or process server. A process server will charge a fee for this service. Service can either be by hand or by mail. If by hand, the server will deliver the papers personally to your spouse and complete a proof of service for the court. If you are serving by mail, service is complete five days after the papers are mailed.
Tips & Warnings
Consider mediation if you have unresolved issues with your spouse. A mediator helps you to resolve conflicts in a non-confrontational manner. Your local county court can supply the contact details of family law facilitators, who assist in finding an agreed settlement.
References & Resources
- California Courts: Filing for Divorce or Separation
- California Courts: Filing for Divorce or Separation – Filing Your Case
- California Courts: Form FL-100
- California Courts: Form FL-105/GC-120
- Superior Court of California: Statewide Civil Fee Schedule
- California Courts: Fee Waivers
- California Courts: Service of Process
- Sacramento County Public Law Library: Divorce, Legal Separation and Annulment
- California Family Code: Section 2310
- Kinsey Law Offices: Legal Separation in California
- Jupiterimages/Goodshoot/Getty Images