What is a Legal Separation in CA?
When a couple decides that living together is not a fulfilling option for them, they often contemplate the available paths they might consider as they navigate the next chapter of their lives. For many couples, legal separation is a preferred route to establish physical distance between the parties without terminating the marriage.
Legal separation is almost identical to the process of divorce. More specifically, in California, it is very similar to the divorce process up to the point at which the court issues a Judgment. Basically , the legal separation process is the same as the divorce process, except for the fact that the Judgment does not terminate the marriage of the parties.
Instead, Judge’s issue a Judgment of Legal Separation, which divides the assets of the parties and sets the custody terms/guidelines for the children. However, the parties cannot get re-married until they go through the added process of getting a divorce.
As far as why some couples choose to be legally separated, the primary reasons families select this alternative change are:
Legal Separation Filing Fees
In addition to the county-wide basic filing fee for new litigation, currently set at $435 in the Santa Barbara Superior Court and the Ventura Superior Court, there is a $60 fee for a summons and a $40 fee for an additional summons in a legal separation. Additionally, whenever a party files papers with the court, the court charges a $40 document research fee. Once your papers are filed, the court will date-stamp each document and there may be a "Notice of Case Assignment" or an "Order Re: Assigning Family Law Cases / Application to Waive Child Custody Mediation Appointment Fee" in the file shortly after filing. Also, anything filed with the court in a legal separation, including other documents like a Petition for Dissolution, has to be served on the responding spouse – thus the use of Family Law (FL) Form 982(b) a proof of service. The process of serving these divorce papers is separate from the legal separation filing fees described above.
Legal Separation Attorney Fees and Legal Fees
Attorney fees and the costs of legal representation can vary significantly in a legal separation. This section will discuss some of the attorney fees and legal costs that may be incurred when hiring an experienced divorce and family law attorney during the legal separation process.
Hourly Fees
While the fees charged by California attorneys vary widely, the majority of California divorce and family law attorneys charge on an hourly basis. The hourly rates charged by attorneys in California can range from as low as $50 per hour for paralegals and clerks who work in the law firm to upwards of $500 per hour for senior partners in major Los Angeles law firms. Your Los Angeles divorce lawyer’s hourly fee will typically be determined by the experience, status, and reputation of the attorney. Generally speaking, less experienced attorneys charge lower hourly fees than more experienced divorce attorneys.
Retainer Fees
In addition to hourly fees, the majority of California divorce and family law attorneys require their clients to pay a retainer fee before they provide legal services to a client. The retainer fee is typically deposited into a client trust account that belongs to the client. As the attorney performs legal services for the client, the attorney withdraws from the client’s trust account the hourly rate that has been agreed upon by the client and the attorney, and then the attorney provides the client with a monthly, detailed statement of the time the attorney spent working on the case. At the end of the case, any unused retainer is returned to the client.
Fixed Fees
Experienced California divorce and family law attorneys also charge fixed fees for certain legal services. For instance, divorce lawyers in Los Angeles typically charge a fixed fee for the following legal services: A fixed fee is charged for filing the divorce paperwork, and additional fees may be charged if the attorney is required to prepare additional documents and appear in court, such as if there are complex child custody or support issues involved in the divorce that require additional documentation and court appearances.
Mediation and Other Alternative Resolution Costs
Mediation is almost universally used in legal separation proceedings in California. Mediation services are typically offered through the court system if both parties are agreeable to the use of the services and the court has the available resources to conduct such mediation. There is no charge for use of court mediation services.
For those who prefer not to go through the court system or for those on a fast track to a legal separation, there are also private mediation services. These services offer a more flexible schedule. Most mediation services operate on an hourly basis , usually charging between $300 and $500 per hour. It is common for a mediator to bill the same hourly rate for all the services provided in a matter, regardless of whether the services provided are mediation only or mediation and also drafting or preparation. With these additional drafting and preparation services, as compared to the court services, the costs become much higher, frequently in the $5,000 to $15,000 range, depending on the issues involved.
Comprehensive Legal Separation Costs and Fees
While the fundamental legal separation process itself may not add excessive costs, the associated the cost of legal separation can quickly mount when the following factors are taken into consideration:
- Court costs. There always are court costs related to filing forms, whether for temporary custody arrangements, court date requests, etc. These costs can add up more quickly than you might expect.
- Document service fees. If you and your spouse are unable to come to an agreement on separation arrangements, there is a good chance that you will have to utilize an official document server to deliver court-required documents. Again, these costs can rise fairly quickly, so if you can run the documents personally, do so.
- Division of property or assets. At some point, you will almost certainly need the assistance of a financial specialist, such as a forensic accountant, to go over household finances. This is an essential step when dividing marital property or assets. Depending on how many assets your marriage holds, this can be a significant cost.
- Child custody arrangements. If applicable, it is always a good idea to enlist the services of a therapist or child counselor to help sort out the best custody arrangements for the children of your legal separation.
Reducing the Cost of a Legal Separation
When it comes to costs, the less work a lawyer has to do to address a given case issue, the less it (theoretical) costs. While good and ethical legal practice keeps the lawyer on the same side of the playing field as the parties in most cases, lawyers ultimately cannot be the party’s primary care givers when conflicted emotions, bitterness and selfs-seeking desires enter the picture. Instead, lawyers are available to serve as a sounding board and process advocate to keep things (relatively) fair in a divorce or separation. This also means (in some cases) cutting down the time and effort that have to be spent in preparing the pleading, analyzing outstanding issues, sending and receiving info and negotiating settlements.
Mediation is one way for parties attempting to reach a separation agreement to reduce legal costs. When both parties are agreement oriented, all of the major issues can be discussed and addressed up front with respect to client needs and interests. In other words, the issues are explored in light of real world wants instead of false or otherwise alternative presentations of reality. Parties who can participate in (or at least tolerate) a mediation setting over a multi-hour period can generally make a lot of headway on developing a working separation agreement that will minimize or eliminate the need for a court hearing.
Joint filing of pleadings is another way to keep costs down in a case. Once the basic terms of a separation are in writing and finalized , most cases qualify for a "default" status procedure wherein the court will simply accept the couple’s agreement and grant the separation as requested. Financially, the parties benefit because rather than the court trying to determine the facts and issues of the couple’s situation (reaching its own (sometimes incorrect)) conclusions, the court instead (as long as the paperwork is sufficient) simply accepts and "rubber stamps" the agreement.
Even advisors on the outside helping a couple through the process can help keep issues from getting so out of hand that they become obstacles to peace! For example, sometimes if individuals will listen to reason and the benefit of pursuing an out-of-court settlement over a protracted litigation battle, costs can be reduced. While this doesn’t always happen (unfortunately), there are times when a friendly voice – even that of a legal advisor – can have a positive impact on a situation.
In the end, it all comes down to how the divorce is handled. When parties allow personal issues to drive a wedge to prevent reasonable negotiations, costs are bound to mount. While reasons for this might be understandable (from a psychological point of view), the financial outcome isn’t usually positive for either party. Exploring options here to bring a divorce or separation to an end can make all the difference in the world for each individual.