Hacking California Family Law
Cool title, huh?
Anyway, having over the past few years gone through the entire process of drafting and filing a legal separation, and then a divorce, in the state of California, without lawyers involved, I wanted to share something with y'all who might be thinking about this. And if you are, then you must be wondering about the same things I was wondering about, namely:
Can a legal separation be subsequently "converted into" a divorce?
Good luck finding the answer to this one out there. In fact, I can tell you what you will find: a lot of negatives, no, you can't, you have to go through a divorce.
But then, you might well be asking yourself, what is the purpose of legal separation? after all, the state pretty clearly describes this as a "divorce lite", wherein you go through the entire divorce process, including things like a settlement and custody agreement.
So, which is it? is a legal separation really like a divorce, or isn't it? and if it is, then why do all these people - including the ones giving free advice in the courthouse, who at least aren't lawyers with a vested interest in telling you whatever generates the most fees - tell you that you can't simply convert it to a divorce later?
None of it makes sense. So I figured, like my posts about Ubuntu for the stupid user, I will make another post about family law for the simple man (and woman).
Obligatory part of the post: I am not a lawyer. If you take anything I say as legal advice, you're being silly. I'm just an anonymous blogger on the interwebs.
What I am, however, is someone with very relevant recent experience. What I am about to share is completely real, true and easy to prove (court filings being public matter).
So there you go: yes, from a practical standpoint, you can very easily "convert" a legal separation to a divorce in the state of CA. It's quick, it's simple, and there is no proper legal definition for it. I don't know why the courts find it necessary to muddle the waters around this issue so much, because it doesn't need to be that way.
The points that need to be made:
1) a legal separation is exactly like a divorce. You follow the same exact process, only you check a different checkbox on a couple of the forms. This means that it does, indeed, include full settlement and custody agreements. Community property ceases to exist once you're done, and it takes effect immediately.
2) there is no "legal option" to FILE a "conversion" from a legal separation to a divorce. That is the part that is so confusing. To subsequently divorce, you do indeed need to go through the entire process again.
However:
3) assuming nothing changes between the two of you when you file for the divorce, the process is greatly simplified. You do not need a new settlement agreement, a new custody agreement, or in fact, a new anything. You can literally use the same forms you used previously, changing the checkbox and dates. You don't even have to submit the agreements again. In other words, you will be going through an exercise in paperwork, and that's all.
So, how to effect a "conversion"?
Simple. Use the same forms you went through for the legal separation. Refill them the same way, except change to "divorce". Update the dates. File the same way.
THEN, when you get the final forms - the ones about settlement (FL180) - instead of filing a new agreement, you only need to file a one-pager, that says the following (I am highlighting the important portion, the one that creates the "conversion" effect; the rest is just boilerplate):
=======================
MARITAL SETTLEMENT AGREEMENT
AGREEMENT made on this __ day of __, 20__, by and between __ (hereinafter referred to
as "Wife"), residing at ____, and __ (hereinafter referred to as "Husband"), residing at ____
PURSUANT TO FAMILY CODE SECTION 3048(A):
1. This Court exercises jurisdiction under Family Code Sections 3421-3424.
2. Notice and opportunity to be heard were given under Family Code Section 3425.
3. A clear description of the custody and visitation rights of each party is set forth herein.
4. Violation of the order may subject the party in violation to civil or criminal penalties, or both.
5. The habitual residence of the child/ren is the United States of America.
WHEREAS, we were married on the __ day of __, 20__, in ____, State of ____, and we now mutually desire to dissolve our marriage and mutually agree to live permanently separate and apart from
each other, as if we were single;
WHEREAS, we each have exercised good faith and have made fair, accurate, and complete disclosure to each other regarding all financial and property matters pertaining to this marital settlement agreement;
WHEREAS, we mutually desire to settle by agreement all matters regarding our marital affairs, child custody and visitation, personal and real property, and finances;
WHEREAS, we mutually intend this agreement to be a final disposition regarding the marital issues addressed herein and intend that this agreement be incorporated into any subsequent FINAL JUDGEMENT OF DISSOLUTION OF MARRIAGE.
THEREFORE, in exchange for the mutual promises herein contained, we agree to live separately and to divide our property and finances according to the following mutually agreed upon terms and conditions:
ALL MATTERS
Husband and Wife are already legally separated.
To settle all matters of this dissolution of marriage, Husband and Wife both agree that the terms outlined in the legal separation case, previously entered and approved by the court, also known as California Family Law Case No. ____ are all to remain fully intact, without change in either terms or associated timelines.
ACKNOWLEDGEMENT
Husband and Wife acknowledge that each has entered into this agreement in good faith, without any duress or undue influence. Each understands his or her right to seek independent counsel regarding this agreement, and each has had the opportunity to seek independent counsel prior to signing this agreement.
CHOICE OF LAW
Husband and Wife agree that this agreement shall be governed and construed in accordance with the laws of the State of California.
Signed and dated this __________ day of _______________________, 20_____.
________________________________ ________________________________
Wife Husband
===================================
Presto! you have converted your legal separation into a divorce. Sure, you didn't technically "convert" anything, but doesn't this sound a whole lot easier than "filing a new divorce case"? in other words, all the effort you put in the legal separation is not for naught. When the time comes to effect a divorce, assuming you're still agreeing on the same things the way you did before, it is very easy to go through.
And now, back to Ubuntu for Idiots.
Anyway, having over the past few years gone through the entire process of drafting and filing a legal separation, and then a divorce, in the state of California, without lawyers involved, I wanted to share something with y'all who might be thinking about this. And if you are, then you must be wondering about the same things I was wondering about, namely:
Can a legal separation be subsequently "converted into" a divorce?
Good luck finding the answer to this one out there. In fact, I can tell you what you will find: a lot of negatives, no, you can't, you have to go through a divorce.
But then, you might well be asking yourself, what is the purpose of legal separation? after all, the state pretty clearly describes this as a "divorce lite", wherein you go through the entire divorce process, including things like a settlement and custody agreement.
So, which is it? is a legal separation really like a divorce, or isn't it? and if it is, then why do all these people - including the ones giving free advice in the courthouse, who at least aren't lawyers with a vested interest in telling you whatever generates the most fees - tell you that you can't simply convert it to a divorce later?
None of it makes sense. So I figured, like my posts about Ubuntu for the stupid user, I will make another post about family law for the simple man (and woman).
Obligatory part of the post: I am not a lawyer. If you take anything I say as legal advice, you're being silly. I'm just an anonymous blogger on the interwebs.
What I am, however, is someone with very relevant recent experience. What I am about to share is completely real, true and easy to prove (court filings being public matter).
So there you go: yes, from a practical standpoint, you can very easily "convert" a legal separation to a divorce in the state of CA. It's quick, it's simple, and there is no proper legal definition for it. I don't know why the courts find it necessary to muddle the waters around this issue so much, because it doesn't need to be that way.
The points that need to be made:
1) a legal separation is exactly like a divorce. You follow the same exact process, only you check a different checkbox on a couple of the forms. This means that it does, indeed, include full settlement and custody agreements. Community property ceases to exist once you're done, and it takes effect immediately.
2) there is no "legal option" to FILE a "conversion" from a legal separation to a divorce. That is the part that is so confusing. To subsequently divorce, you do indeed need to go through the entire process again.
However:
3) assuming nothing changes between the two of you when you file for the divorce, the process is greatly simplified. You do not need a new settlement agreement, a new custody agreement, or in fact, a new anything. You can literally use the same forms you used previously, changing the checkbox and dates. You don't even have to submit the agreements again. In other words, you will be going through an exercise in paperwork, and that's all.
So, how to effect a "conversion"?
Simple. Use the same forms you went through for the legal separation. Refill them the same way, except change to "divorce". Update the dates. File the same way.
THEN, when you get the final forms - the ones about settlement (FL180) - instead of filing a new agreement, you only need to file a one-pager, that says the following (I am highlighting the important portion, the one that creates the "conversion" effect; the rest is just boilerplate):
=======================
MARITAL SETTLEMENT AGREEMENT
AGREEMENT made on this __ day of __, 20__, by and between __ (hereinafter referred to
as "Wife"), residing at ____, and __ (hereinafter referred to as "Husband"), residing at ____
PURSUANT TO FAMILY CODE SECTION 3048(A):
1. This Court exercises jurisdiction under Family Code Sections 3421-3424.
2. Notice and opportunity to be heard were given under Family Code Section 3425.
3. A clear description of the custody and visitation rights of each party is set forth herein.
4. Violation of the order may subject the party in violation to civil or criminal penalties, or both.
5. The habitual residence of the child/ren is the United States of America.
WHEREAS, we were married on the __ day of __, 20__, in ____, State of ____, and we now mutually desire to dissolve our marriage and mutually agree to live permanently separate and apart from
each other, as if we were single;
WHEREAS, we each have exercised good faith and have made fair, accurate, and complete disclosure to each other regarding all financial and property matters pertaining to this marital settlement agreement;
WHEREAS, we mutually desire to settle by agreement all matters regarding our marital affairs, child custody and visitation, personal and real property, and finances;
WHEREAS, we mutually intend this agreement to be a final disposition regarding the marital issues addressed herein and intend that this agreement be incorporated into any subsequent FINAL JUDGEMENT OF DISSOLUTION OF MARRIAGE.
THEREFORE, in exchange for the mutual promises herein contained, we agree to live separately and to divide our property and finances according to the following mutually agreed upon terms and conditions:
ALL MATTERS
Husband and Wife are already legally separated.
To settle all matters of this dissolution of marriage, Husband and Wife both agree that the terms outlined in the legal separation case, previously entered and approved by the court, also known as California Family Law Case No. ____ are all to remain fully intact, without change in either terms or associated timelines.
ACKNOWLEDGEMENT
Husband and Wife acknowledge that each has entered into this agreement in good faith, without any duress or undue influence. Each understands his or her right to seek independent counsel regarding this agreement, and each has had the opportunity to seek independent counsel prior to signing this agreement.
CHOICE OF LAW
Husband and Wife agree that this agreement shall be governed and construed in accordance with the laws of the State of California.
Signed and dated this __________ day of _______________________, 20_____.
________________________________ ________________________________
Wife Husband
===================================
Presto! you have converted your legal separation into a divorce. Sure, you didn't technically "convert" anything, but doesn't this sound a whole lot easier than "filing a new divorce case"? in other words, all the effort you put in the legal separation is not for naught. When the time comes to effect a divorce, assuming you're still agreeing on the same things the way you did before, it is very easy to go through.
And now, back to Ubuntu for Idiots.
posted by Blinkered at 11:34 AM
9 Comments:
Thanks for this, it's useful and certainly a lot clearer than anything I've found online.
One question; does the "six month waiting period" start over again when you file the new papers?
Thanks very much,
FM.
Well, it never started to begin with.
One difference between a legal separation and a divorce is that with a legal separation, there is no waiting period beyond when the judge signs the order.
Once you file for the actual divorce, however, the six months clock still plays out normally.
Thank you so much! This is exactly the information I have been searching for!
Are you sure that's right? I've read s few places that the 6 months starts when the separation paperwork is served. Many folks choose to start separation paperwork since it's immediate and then do divorce later and the 6 month waiting period has already started ticking down... It wouldn't make much sense to have a couple who has been separated for 10 years to still wait 6 months for a divorce. Then again, this is the law so it doesn't have to make sense! Thanks for post, it's super helpful!!!
Erick,
Yes, it is how it works, at least from my experience. The legal separation is "insant", but the 6-month waiting period starts when you file the actual divorce paperwork. Our separation lasted for a year before we filed for the divorce, and it took the requisite six months at that point. However, the process is incredibly simple then.
Thanks for the response! Yes, I just talked to an attorney, too, and you are totally right.
Can I bug you with another question? Do you have to have your separation judgment completed and done before you can start your divorce paperwork? At what point in the process do you refer to your separation paperwork and case number - is it just at the agreement stage at the end? THANKS!!!
Erick,
I don't think you do - each of these filings is separate. I'm not sure what the point would be, though. And if you don't wait, then you can't refer to the previous judgment and MSA in your divorce paperwork, so it makes the whole "hacking" aspect of things moot.
As for the referring part - yes, that's the case. You submit that notarized "mini-agreement" I posted as your agreement for FL180, and you're done.
Do you have to file full financial disclosure documents again, and list all separate property etc as you do in he legal separation forms?
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