Can I Be Awarded Child Custody During a Legal Separation?

When you and your spouse choose to legally separate, the same family law issues must be addressed similarly to a divorce. Child custody is a mandatory component of any California legal separation agreement that involves children.

Determining Child Custody and Other Terms

The methods for determining child custody and visitation arrangements are the same as divorce. A couple can come to an agreement on their own, negotiate with the help of their attorneys, find a resolution through mediation, or ask the court to decide for them.

In addition to child custody, these terms are also established in a legal separation agreement:

Other matters that should be addressed in an agreement include the following:

  • How living expenses will be paid (rent, mortgage, groceries, utilities, etc.)
  • How assets will be managed (bank accounts, investment accounts, etc.)
  • How income/assets or debts will be treated after the date of separation

Negotiated or mediated separation agreements are binding contracts, but they cannot be enforced by the court. If the agreement is given to the court for approval, the contract will have the same weight and power as a court order if the judge signs it.

Modifying Temporary Custody Orders

Legal separations can last indefinitely, increasing the chance that custody or other orders may need to be modified at some point. A judge will typically approve any change agreed to by both parents. When that is not the case, the parent requesting the modification can take the case to court. That parent will need to demonstrate to the judge that a significant change in circumstances has occurred and that a modification is warranted.

Distinguishing Legal Separation from Divorce

Like divorce, one spouse must file a petition for a legal separation and serve the petition papers to the other spouse. Financial disclosures must also be filed with the court.

Legal separation does not require any particular grounds. The no-fault concept applies. Other than irreconcilable differences, “permanent legal incapacity to make decisions” can be a basis for separation but is rarely used. Unlike divorce, there is no minimum residency requirement; however, California requires children to meet residency requirements for the state to have jurisdiction over custody or visitation orders. Exceptions to that rule are only made in emergency situations.

Legal separation in many ways mirrors divorce except for the important fact that the two parties remain married.

A legally separated couple differs from a divorced couple in these ways:

  • The parties remain legally married and cannot marry someone else
  • Legally separated couples might be able to remain on the same health insurance
  • Legally separated couples may be able to enjoy continued military spouse privileges
  • The couple will not be divorced, maintaining good standing within their religion

Legal separation takes immediate effect after it is ordered. Should the couple choose to divorce at a later time, the separation agreement can serve as a foundation for the marital settlement agreement, but that is not required.

Separation Agreements that Hold Up in Court

Couples can begin to talk about the details of the separation, but DIY agreements are less likely to hold up in court. At Palmer Rodak & Associates, our firm is led by a Certified Family Law Specialist with significant experience drafting comprehensive agreements that meet all legal requirements.

Decisions made in a separation agreement can have long-term consequences. We will ensure your rights are protected in an enforceable agreement that meets the needs of your family.

Learn more about legal separation by scheduling a consultation. Contact us online or call (760) 573-2223.