Voted #1 Family Law Firm in California
in a statewide poll limited to Judges, Attorneys, and Law Firm Administrators.
Request a Consultation
Legal separation can be a difficult and expensive process. While it may not be as complicated as a divorce, you and your spouse must still divide your property, work out child custody, deal with tax implications, and take care of many other tasks and processes. A lawyer can guide you through these processes to protect your rights and work toward your case goals. You can focus on building your future post-separation while a lawyer handles legal matters for you.
In general, a couple will not need to hire a lawyer in California for a simple legal separation case, such as one that does not involve children or a great deal of property, or if both parties can communicate with each other and compromise on the terms of the separation. If your case is complicated or contested, however, it can be beneficial to hire an attorney in San Jose. If your ex-spouse has hired a lawyer, this is also a sign to hire one of your own.
Legal separation means that a couple is living separately but is still married in the eyes of the law. Legal separation is similar to divorce in that the couple divides their assets and works out issues such as child custody and child support. However, it does not dissolve the marriage. There are several potential benefits to a legal separation.
First, it can help you protect your assets if you believe that your marriage will end in divorce. California is a community property state, meaning that all of your assets that are classified as community property – everything you earned or acquired during your marriage – will be divided in half in a divorce. Your separate property, however, is safe from division. Separate property is anything you owned prior to your marriage. It is also anything you acquire after your date of separation or any inheritances or separate gifts.
Legal separation also has an advantage in that it is reversible. It is much easier to end a legal separation and return to married life than it is to get remarried after a divorce. If there is any chance of reconciliation, therefore, legal separation can be the best option. Finally, legal separation can allow you to keep certain benefits related to being married while still living a separate life from your ex-spouse. These can include tax benefits, health insurance and Social Security benefits.
For a legal separation, you or your attorney will need to fill out and file the correct papers with the Santa Clara County family courthouse. These are the same papers that are used for divorce. It is critical to be careful when filling out these forms, as they can affect the outcome of your legal separation. You will need to pay the filing fee and serve the papers on your spouse. Then, you and your spouse will enter into negotiations, which will either end in a settlement agreement or a trial.
You and your spouse will either need to work together to reach a settlement agreement or take your case before a judge. A settlement agreement for ending your marriage or domestic partnership is typically preferred, as it is faster and less expensive than going to trial. If you cannot reach a settlement, however, a San Jose legal separation lawyer can represent you before a judge to present your case.
As mentioned above, California is a community property state. This is one of the benefits of legally separating before getting divorced; you can set a separation date, after which all income and property that you acquire will be classified as separate property and will not be divided with your ex-spouse. All of your marital property will be subject to a 50/50 split if your case goes to trial. This is true of a divorce as well as legal separation.
Before a judge will intervene and divide all community property in half, you and your spouse have the chance to create your own property division agreement. Negotiating with assistance from an attorney can be the best way to protect your assets and real property during a legal separation. A lawyer will improve the odds of reaching a property division settlement with your ex through alternative dispute resolution methods such as mediation. Your lawyer will also make sure that your separate property is properly classified.
You and your spouse will also have the opportunity to design your own parenting agreement before the matter goes to a judge. If you cannot work out child custody during your legal separation, a judge will make this determination based on the best interests of the child. This means the schedule that will protect the child’s physical, mental and psychological well-being the most after legal separation.
A court-ordered custody agreement looks different from family to family. What is best for your child may be a 50/50 parenting time split, or it may look more like 25/75. A judge will carefully analyze the specific needs of the child to decide what type of custody arrangement will protect his or her best interests.
Legal separation is generally a faster process than getting divorced in California. Unlike a divorce, there is no residency requirement or waiting period for legal separation. The date of separation will take effect immediately upon a judge signing off on the final paperwork. A divorce in California, on the other hand, takes at least six months and one day, at a minimum. Legal separation may take longer, however, if the parties cannot agree on the terms of the separation. In this case, the couple will go to court in San Jose, which will lengthen the legal process.
Working with a family law attorney in San Jose can make for a much easier legal process for you and your family. It is especially important to hire a legal separation attorney if your case has any complications, such as minor children or high-value assets. Your lawyer will protect your legal rights and allow you to focus on the future. For more information about legal separation in San Jose, contact the Schoenberg Family Law Group, P.C. for a consultation.
"I was seeking a reputable family law firm for my prenuptial agreement and received high praise for the Schoenberg Law Group. My attorney listened to my questions and responded to them very patiently. She also paid close attention all my concerns and made sure I was aware of the legal value of the agreement I was about to sign. It was…”
D.R.“It has been a real blessing to find this family law group in my life. I was in the middle of a custody battle with my ex wife and had a lawyer who had sided with my ex wife’s lawyer. I was faced with the option of paying to a regular lawyer to do half jobs with no results or to invest a bit more for a top family counselor who understood my situation and at the same time not giving me false hopes."
A.L."I hesitated filing papers for a long time because I was not sure if I could survive a long legal battle. When we were married, my husband worked while I raised the children, two under four years old, and I was afraid I would lose the stability they needed. I had a wonderful group of friends that helped me search for a reputable law firm that could represent me when my focus was on my children. They found the"
L.A.We are trial lawyers who litigate high-conflict, high-stakes cases. While we try to build on mediation efforts and exhaust opportunities for a negotiated agreement, emotions, egos and various other realities often force these disputes into court. It is critical to work with a firm that knows how to apply the law and the facts in your favor, whether in the courtroom or at the negotiating table.
One of California’s Top Family Lawyers for five consecutive years: 2022–2026
SFLG Voted #1 Family Law Firm in California for six consecutive years: 2021 - 2026
One of the Best Places to Work in the Bay Area by San Francisco Business Times
Debra Schoenberg was named a Fellow of the American Academy of Matrimonial Lawyers (AAML)
Designated as a Certified Family Law Specialist by the State of California Board of Legal Specialization
Board-Certified Family Law Trial Specialist by The National Board of Trial Advocacy (NBTA)
“My goal is to preserve your dignity and your humanity throughout what can be a very difficult and painful process, while at the same time achieving a favorable outcome on your behalf.”
Over 400 Years of Collective Family Law Experience
Debra R. Schoenberg
Owner & Founder
Lily Huang
Senior Associate
Kimia Kojouri
Associate
Miho Takarada
Senior Counsel
