Legal separation in California requires the consent of both marriage partners, although a spouse served with a petition for legal separation may refuse to take part in the process but may still allow it to proceed without objection. If the spouse who is served with a petition for legal separation objects to the separation, the filing spouse may have no choice but to continue the marriage or to file for divorce.
Who Gets the House in a California Divorce? | DivorceNet
Petitioning for legal separation in California is just as complicated as filing for divorce. In legal separations as well as divorces, the partners can personally resolve any disputed issues in the marriage, or a court can make those decisions when the partners cannot reach agreements. However, only marriages of five years or less with no children, no real estate, and limited assets are eligible for the summary divorce process. A legal separation decree issued by a California court deals with the same questions as a divorce decree. Both types of decrees divide and distribute the joint marital property.
Both types of decrees also spell out the arrangements for spousal support, if any, and if children are involved, both types of decrees specify the precise arrangements for child custody, child support, and visitation. Both types of decrees are legally binding. In both divorces and separations, the spouses can reduce their time, expenses, and anxieties by reaching agreements on as many topics as they can before they formally initiate legal separation or divorce proceedings.
Having the insights and advice of a Long Beach family law attorney is imperative for anyone who is seeking a legal separation or a divorce in southern California. In summary, these are the steps that you must take to obtain a legal separation in the state of California:.
Ten Things You MUST Do Before You File for Divorce
The form includes options for both divorce and legal separation. A family law attorney can help you complete the form. A family law attorney can help you complete this form too. Those with low incomes and those receiving public benefits may qualify for a waiver of the fee. Finally, if you are considering a separation or a divorce in Long Beach or anywhere in Orange County, Los Angeles County, or elsewhere in Southern California, obtain the reliable legal advice you need, and arrange to meet with a trustworthy Long Beach family law attorney.
Duron brings an extensive educational and professional background in psychology to the field of family law. Duron earned his J. His practice is focused exclusively on family law. With offices in Cerritos and Long Beach, Mr. The buying spouse will need to refinance the home, so that the selling spouse is removed from the mortgage.
In determining whether the buying spouse can afford to take on full ownership of the home, many costs need to be considered, including:. Tax implications are also an important part of the financial equation. You need to determine whether the buying spouse would be entitled to a mortgage interest tax deduction. For more information regarding eligibility for a mortgage interest deduction, see IRS publication If so, the spouse paying the mortgage can claim a tax deduction for spousal support payments.
The spouse keeping the home would need to claim those payments as spousal support income, but still may be eligible to claim a mortgage interest tax deduction. Find more information on Negotiating a House Buyout at Divorce.
When the spouses have minor children in common, the court may make an order that temporarily delays sale of the home. Under this scenario, both spouses continue to own the home jointly for a set period, giving the custodial parent exclusive use and possession of the home during this time.
The purpose of a deferred sale order is to minimize the impact of the divorce on the children.
In considering a deferred sale order, the court first must determine whether the spouses will be able to afford the payments on the house after the divorce. If the court finds that a deferred sale is financially feasible, the court must then decide whether a deferred sale is necessary to minimize the impact of the divorce on the children.
The court will consider all of the following factors:. An order for a deferred sale will specify how long the order is in place, after which time the spouses will sell the home. A spouse may be entitled to reimbursement in the following situations:.
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As discussed above, when a spouse purchases a home before marriage, it is separate property. But, if community funds are used to make mortgage payments or improve the separate property home during the marriage, the other spouse acquires an interest in the home. Under California law, the court can order that a spouse be reimbursed when he or she uses separate property funds to pay the mortgage on a community home after the date of separation and before the divorce, unless it would be unfair and unreasonable for that spouse to expect reimbursement.
For example, the court will not order reimbursement if the spouses agree there will be no reimbursement, the payments were intended as a gift, the spouse making the payments continued to live in the home and the payments were not substantially greater than the rental value of the home, or the payments were made in lieu of or as a form of spousal support.
A spouse who has exclusive use and possession of the family home between separation and divorce may be charged with the fair rental value of the home for that time period, owing half of that value to the other spouse when the property is divided. You can find much more information in our section on Divorce and the Family Home.
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The California statutes regarding division of the house in a divorce are found in the California Family Code, sections , , , and In re Marriage of Brooks and Robinson Cal. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.
Step 1: Preparing to File for Divorce
When it comes to the marital home, divorcing couples have a few options to distribute this valuable asset. Whose House Is It? Community Property Presumption In California, there is a presumption that property acquired during the marriage is "community property," which means the property is owned by both spouses equally unless one spouse acquired it through an inheritance or gift.
Who Gets the House in the Divorce?
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