When you are faced with the reality that the end of your marriage may be imminent, it is advisable to begin planning for how best to end your relationship while remaining sane. It is recommended that spouses, especially if they have children, attend marriage counseling before proceeding with terminating their marriage. If that fails, or if one spouse refuses counseling, it is time to plan for a divorce.

The following are some basic issues to consider before commencing a divorce action in California. This is not an exhaustive list and we recommend contacting a Family Law Specialist in your County for specific legal advice concerning your family’s needs and situation.

Divorce vs. Legal Separation

The Petitioner (the spouse who initiates the legal action) decides whether to file for a divorce or a legal separation. Both processes involve the filing of a Petition with the Superior Court of the County in which the spouse resides. Both processes are virtually identical in terms of cost, documents required, decisions made by the Court, etc. However, in the event of a legal separation action, the parties continue to remain married at the end of the process, whereas in the event of a divorce action (aka dissolution action), the parties walk away as single individuals.

The reason for choosing to proceed with a legal separation action instead of a divorce action typically involves a situation where one spouse has a serious medical condition and the other spouse has health insurance available through employment. In this scenario, the ill spouse could remain on the other spouse’s insurance only if the parties continue to be married, and would lose the insurance benefits after a divorce. Thus, in this scenario it would be advisable for the ill spouse to obtain a legal separation instead of a divorce. In a legal separation action, the parties will finalize all issues in their marriage, including division of their assets and debts, child and/or spousal support, child custody, etc., with the exception of the termination of their marital status. The termination of the marital status will be reserved for a future event, such as a specific future date, request of either party, etc..

It should be noted that both spouses must agree on a legal separation for the Court to grant a legal separation. If one spouse files for a legal separation and the other files for a divorce, the action will proceed as a divorce action.




Date of Separation

In California, the “Date of Separation” is an important concept, defined as the date when the spouses have come to a parting of their ways with no present intent to resume their marriage and their conduct evidences a complete and final break in the marital relationship.

The reason date of separation is important is that, pursuant to California community property laws, the date of separation cuts off the acquisition of community assets and debts. This means that all assets acquired, income earned after date of separation, and debts incurred, are the spouse’s separate property, and not the community property of both spouses.

If your spouse has incurred debts, you should consider whether you should claim that the date of your separation was prior to the date the debts were incurred. This is because debts incurred during the marriage are ”community debts” and you are liable for one-half of all community debts. If you want to receive the maximum value of your spouse’s earnings, savings and contributions to a pension and/or a retirement plan, then you should consider the latest possible date of separation.

Domestic Violence

In the event of domestic violence, the abused spouse must contact the local police immediately and obtain temporary restraining against the abusive spouse and a kick-out order of that spouse from the family home. Usually, the abusive spouse is arrested and the police issue a temporary restraining and kick-out order at the time of the arrest. These temporary orders usually last for 3-5 days. The abused spouse must then obtain another Temporary Restraining Order from the local Superior Court in order to ensure that the abusive spouse does not return to the home and/or come near the abused spouse.

Segregating Funds – No Commingling

As income earned after the Date of Separation is separate property, it is important to keep all such income separate (or segregated) from community funds which exist on the date of separation. We recommend establishing a separate bank account in a spouse’s own name into which the spouse’s separate income (that is earned after the date of separation) is to be deposited. This will make the division of assets easier.

Gather All Financial Documents

It is crucial to obtain copies of all financial and other important documents before filing to dissolve the marriage. This includes at least the last three to five years of tax returns, all bank statements, retirement account statements, brokerage account statements, life insurance policies, deeds to real properties and pay-stubs. We recommend that these copies be stored in a safe place during the initial stages of the separation, so that they could be provided to your attorney upon request. Often, important documents tend to “disappear” from their usual storage places in the residence after legal action is filed.

Separating Joint Accounts

It is recommended to withdraw one-half of the balance in all joint bank and investment accounts once you have decided to file for dissolution or legal separation, while leaving the other one-half for your spouse. As the money in a joint account is typically community property, one-half belongs to each spouse. The “race to the bank” typically begins around the time a legal action is filed. Taking one-half out before the filing of the divorce will protect your interest in the account and will prevent the other spouse from taking out all of the money, leaving you with nothing.

Obtain Deeds to Real Property

Once an action is filed, each spouse is entitled to record and file a document known as “Lis Pendens” concerning each real property owned by one or both of the spouses. Once this document is recorded in the Office of the County Recorder, it puts all potential creditors and lenders and potential buyers on notice that there is a lawsuit pending which involves the real property. Thus, if one spouse attempts to sell a real property or attempts to secure a loan against it, while the divorce is pending, the other spouse will receive notice of it before the sale/loan is effectuated, or the lender/buyer will walk away from the transaction after discovering that a “lien” was recorded against the real property. You can record this document even if the real property is only in the name of one spouse and not both.

The legal description of a real property, which appears on the face of the Deed, is needed in order to record a Lis Pendens against a real property. For this reason, it is very important to have a copy of the Deed ready to give to your attorney as soon as the divorce is filed.

Do Not Move Out of Residence

If you have minor children, it is best not to move out of the family residence until there is a written agreement or a Court Order in place concerning custody of your children.

Many people contemplating divorce find it very difficult to continue living with a spouse and want to immediately move out of the family residence as soon as they have decided to end the marriage. However, if there are no custody agreements or Orders in place, moving out without your children may hinder your chances to obtain favorable custody orders later in the litigation. It may lead the Court to ultimately award to the out parent less time with the children, which will then result in a higher child support obligation. On the other hand, moving out with your children without a court order may cause great conflict with your spouse over custodial arrangements and may eventually lead to adverse custody or visitation orders.

Therefore, it is best for one spouse to move out of the master bedroom and into a spare room, if possible, while arriving at an agreement regarding custody, before moving out. This, of course, does not apply in the event of domestic violence. In the event of domestic violence, you must take all steps to protect yourself and your children, including moving out of the residence if necessary and obtaining restraining orders.

The above information is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.