When a marriage fails, the first task is determining the proper procedure to preserve your legal rights. If your marriage was based on fraud or lasted less than 3 months, nullity of your marriage may be the best approach. If on the other hand, you both married in good faith, you must then decide on whether to proceed with a legal separation or a divorce, also referred to as the dissolution of your marriage.
A legal separation allows you to divide property, resolve custody issues and obtain support without formally dissolving the marriage. Some reasons for choosing legal separation include, but are not limited to, moral, ethical or religious beliefs that do not condone divorce, the preservation of health insurance, as well as pension rights and derivative social security benefits that may otherwise be impacted by the dissolution of the marriage. If either party plans to remarry, dissolution of the marriage should be sought out. California is a no-fault divorce state.
Accordingly, if one party does not want a divorce but the other does, the party wanting the divorce may proceed by default based on irreconcilable differences even if the other party objects. Once a petition is filed, a summons is issued. The summons includes automatic temporary restraining orders precluding either party from removing a minor child from the state and from transferring property, and canceling insurance policies, among other orders.
It is effective as to the petitioner as soon as the petition is filed and is effective as to the respondent as soon as he or she is personally served with the petition and summons. If you are unsure whether or how to file a nullity, legal separation or divorce petition, or if you have been served with a petition and summons, time is of the essence, so please contact us for a free initial consultation.