Thursday, July 21, 2011

CAN I FILE FOR LEGAL SEPARATION IF MY SPOUSE FILES FOR DIVORCE?

QUESTION: Can I file for legal separation if my spouse is filing for divorce? Do both parties need to agree on this or does the divorce hold?

MY RESPONSE:

You can but you won't prevail.

A Legal Separation is granted where the parties agree to a Legal Separation, or where the Respondent defaults in a Legal Separation case.

People rarely seek Legal Separation because that results in custody, support and property division orders but leaves them married to each other.

People seek legal separation where they have religious beliefs against Divorce, or where one party has an otherwise uninsurable health problem and the parties agree to remain married to each other to enable that party to receive the benefit of employer-provided health insurance coverage available to the employee and his/her family.

What possible reason would you have to want a Legal Separation? You would remain married to your spouse, you would be unavailable for a new relationship, you would likely have to file your income tax returns as Married Filing Separately (the highest possible marginal tax bracket) unless you and your spouse agree to file joint income tax returns, and if you wanted to get a divorce, you would have to start over from scratch.

In any event, if your spouse files for Divorce and you file for Legal Separation, your spouse will receive the Divorce, which requires only irreconcilable differences. Your wanting a Legal Separation vs. your spouse's wanting a Divorce is an irreconcilable difference which would result in the Divorce being granted.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

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