Marriage is a contract and it takes a judicial decree, also called a Judgment of Divorce, to dissolve it. In California State, a married couple needs a reason (also referred to as grounds) for seeking a divorce in order to be awarded one. Often, in a divorce action, each party makes allegations against the other. One spouse may assert that the other spouse has subjected him/her to “cruel and inhuman” treatment, abandonment, or infidelity. In these instances, it becomes the ultimate duty of a Judge review these allegations and award the Judgment of Divorce to one of the spouses. The Judgment leads to the absolute severing of marriage.
There is also a second way that parties can legally live separate and apart, stopping just short of a formal divorce, while still settling any or all of the issues between the parties and preserving their option to procure the Judgment of Divorce at a future time. This mechanism is called is called a separation agreement. A separation agreement is a document which spells out, to the satisfaction both of the parties and of the Court, how the important issues within the marriage are to be resolved. It can be so specific as to leave virtually nothing undefined, or it can dictate that parties agree to disagree about one or more topics, and leave them to be ironed out in the future.
Once a separation agreement is filed with the Court, it becomes a “decree” of the Court. This starts a one-year countdown. If the parties separate and live apart substantially according to its terms for a period of one or more years, then after that time, either party can present it to a Court and seek an uncontested Judgment of Divorce based on its terms. This process is called a “conversion divorce”. Having become a “decree" of the Court, the separation agreement represents the only non-adversarial grounds upon which a Judgment of Divorce may be based.
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A separation agreement outlines the responsibilities of husband and wife to each other, to their children (if any), and to their creditors (if any). It can outline terms of child custody, equitable distribution, child support, insurance, taxes, or even who gets which automobile.
Sometimes, a couple may stipulate to, or agree upon, the resolution of a great many of these kinds of issues before ever reaching a courtroom. They may draft and prepare a separation agreement while they are still living together, or even before they actually split. Once they have done so, a couple is free to hold the unsigned agreement, and then implement it according to their own timetable.
Once they have signed an agreement and separated, parties sometimes find that living apart under the terms of the separation agreement suits each one so much that the couple never seeks the absolute Judgment of Divorce.
Before you sign or even draft a separation agreement, you owe it to yourself to contact attorneys who have the experience, the high level of competence, and the attention to detail found at The Law Offices of Kyle J. Farquhar. We have drafted hundreds of separation agreements, all while protecting the rights of the respective parties.