Tag Archives: Legal separation

How Will My Social Security Benefits be Affected by Divorce?

31 Aug

Many individuals considering divorce have concerns beyond simple property division, and worry about how to protect their social security benefits. Though social security benefits are similar to pension plans, which are dividable as community property in the State of California, Federal law overrides California law and keeps social security benefits from being divided as marital community property. Upon a divorce, social security benefits are designated as the separate property of the spouse who accrued the benefits throughout his or her employment.

However, current AND former spouses may qualify for derivative social security benefits, which are benefits earned through the current of former spouse’s employment. There is a limitation of the qualification for these benefits in that the marriage must have been at least of 10 years duration. Parties seeking divorce who have not quite been married ten years and wish to qualify for such benefits in the future may consider legal separation as an alternative. For more information on legal separation, please see “Legal Separation as an Alternative or Precursor to Divorce”.

Though social security benefits are mandated to be assigned as separate property by Federal law, under California dissolution law these benefits ARE considered income for the calculation of support. All sources of income are considered in California when looking into support awards. For this reason, if you are seeking a divorce and have questions about support and social security, it is important that you seek legal advice. Call today for your free consultation!

Legal Separation as an Alternative or Precursor to Divorce

16 Aug

What is Legal Separation?

The term “separation” is frequently thrown about when a marriage relationship comes to an end. There’s moving out and moving on, which constitutes a physical separation. But there is another, more formal, form of separation. Couples who wish to have their assets and lives divided by law, yet maintain the status of a “married” couple can instead seek a legal separation. Legal separation allows these couples to separate their lives formally, but maintain married for religious, financial, or other personal reasons. This can be beneficial in maintaining health insurance coverage, or qualifying for derivative social security benefits.

As with a standard divorce, a person or couple seeking a legal separation must file a petition with the court and serve this petition and summons onto the other party. From this point, the couple may use the legal system to obtain property division and other orders, such as custody and support orders. However, a final judgment of legal separation will only be granted if both parties consent to it, or if the responding party does not appear.

How Does Legal Separation Differ from Standard Divorces?

Most importantly, when a party or couple seeks dissolution of marriage, the action will end in a termination of the marriage. However, along the way the marital property will be divided, as with legal separation. In this respect, the actions are similar. However, there is a major difference between these actions with regards to a standard residency requirement. With divorces, a judgment of final dissolution cannot be entered unless at least one of the parties was a resident of California for six months, and of the county in which the petition for dissolution was filed for the three months preceding the filing. This causes difficulty for new residents seeking to get a speedy divorce and to benefit from court orders relating to the case. In contrast, there is no residency requirement to seek a judgment of legal separation.

When Would Seeking Legal Separation be Beneficial to Me?

As stated above, any person or couple wishing to seek legal services to formally separate from his or her spouse, but remain married in status, should talk to an attorney about legal separation. If a person seeking legal separation later changes his or her mind and decides that dissolution is preferable, the petition for legal separation may be amended. All orders pertaining to the legal separation proceedings remain in effect once dissolution is sought, and will not be reopened.

In addition, legal separation can prove a helpful tool for couples who wish to obtain a judgment of dissolution, but do not meet residency requirements. In addition to the residency requirement, there is a mandatory six month period from the service of the divorce summons (or appearance of the responding party) before a judgment of dissolution can be entered. Coupled with the residency requirements, parties to a divorce potentially may have to wait a year before it can be finalized. These individuals can use legal separation as a tool for speeding up the process. By filing a petition for legal separation, and later amending the petition to seek dissolution once the residency requirement is met, a party can start the clock upon service of the original summons for legal separation. More simply, a judgment of dissolution can potentially be obtained six months from date the service of the summons for legal separation, not the later date of the amended petition for dissolution. Seeking a legal separation with plans to later amend the action also allows the parties to seek temporary orders in their open court case. This is particularly useful if there are custody issues, or either party is seeking support. Filing for legal separation will also place automatic restraining orders on each party, preventing them from disposing of any assets. This protects and maintains property for later division in the dissolution proceedings.

As always, individuals are urged to contact an attorney before making any decisions about the future of your marital and family status. For more information and potential representation, please call or email for your free thirty minute consultation today!