subject: Divorce Mediation And Legal Separation In California [print this page] At a recent presentation of San Francisco Divorce attorneys designed to provide information to the public, an interesting comment was raised by an attendee. She was seeking validation to her statement that since she and her husband were merely separated, they did not need to engage in divorce mediation.
The fact of the matter is that married couples who are separated need an agreement between them as much as, or more than, divorcing couples.
Many married couples labor under the misconception that if they merely occupy different residences and act as if they are unmarried they are legally separated. The fact of the matter is they are terribly wrong and their failure to act may have dire consequences.
Let us postulate that there are 4 stages of disengagement for a married couple:
First Stage: A mere parting of the ways. This stage is very informal, you go your way, and Ill go mine, shake hands adios. It is not even necessary to occupy separate households.
In this stage the parties are still married. They may have established a Date of Separation in the event of future action to end their marriage, but they are still responsible for each others debts and are still obligated to support one another.
Second Stage: A parting as in the first stage with the addition of an agreement between the parties. This is better protection than First Stage because married couples are free to contract with each other and abrogate, change or do away with marital rights. So even though the couple is still married, this is an improvement from First Stage in that the parties can address issues of support, property division and release from liabilities. A carefully considered and drafted agreement is very useful in this situation. However, an agreement between a couple is not binding on third parties. So, for instance, if one party contract with the other to be responsible for the Master Card account and fails to do so, Master Card is free to collect from both parties.
Third Stage: Legal Separation. This is a formal procedure involving a court action. The parties file the proper pleadings and when approved the Court enters an Order that sets forth the rights and obligations of each spouse while they are living apart. The Order typically deals with the division of assets and debts, child custody, visitation and support and spousal support, if any. A Judgment of Legal Separation is binding on outside parties, such as creditors, who might seek to collect post-separation money from the non-borrowing spouse.
Many of the same issues faced in a divorce are dealt with in a Legal Separation and the resulting Legal Separation Agreement may provide that if either party should move the Court for an Order of Dissolution, the current Agreement will be the basis of that Order. For many couples the foremost difference between Legal Separation and Dissolution is that neither party is free to re-marry.
Fourth Stage: Dissolution. This is the process most people are familiar with. Dissolution is a formal application to the court and when the pleadings are satisfactorily filed, a Judgment of Dissolution will be entered.
In all of the stages set forth it is very important to keep in mind that Divorce Mediation is far and away the best way to proceed. When done properly the couple will obtain a thorough and complete agreement setting forth all of their rights and responsibilities. When the agreement is complete it becomes the basis for any order of Legal Separation or Dissolution that will be entered. It is the least expensive and most effective way to end a marriage.
Do yourself and your family a great service. If you are contemplating a Marital Dissolution, or Legal Separation, hire a professional mediator who is trained in the applicable law to guide you through the process. You will save thousands of dollars and miles of heartache.
