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In California if I file for a legal separation when does it become effective?

San Jose, CA |

I want to purchase a home with other than marital assets that my wife will have no legal rights to. If I file for separation how long past filing with the county clerk will I have to wait in order to make sure the new home is not considered community property?

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Attorney answers 4


A legal separation is the same thing as a divorce, with the sole exception being that you are still legally married. This useful, sometimes, when one of the parties has an uninsurable medical condition and so needs to stay on as a beneficiary of the other spouse's health insurance.

Other than that, the parties will have separated all of their assets, will have addressed issues of spousal support, etc., etc., etc. As I say, just like a divorce, but still legally married.

If you are looking to stay married with your wife, and do not fall into the above scenario, then perhaps you might want to consider a post-marital agreement. You can use this to define your rights and obligations between you without having to go through the trouble of filing a case in court, with all that this would entail.

One word of caution: Even if you are separated -- even if you have filed a divorce (or separation) case in court -- if you use money acquired during the marriage to buy property in your name, alone, then the property is not, necessarily your separate property. This is because the money used to make the purchase will have been arguably community property, having been earned during the marriage.

You should consult with an experienced family law attorney to explore your options. Sometimes what seems to be a good plan of action can backfire in serious ways.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.


To answer your question directly, it's effective only when you have prepared, and the court has entered (i.e., a judge has signed) a judgment of legal separation, which, as noted in the earlier answer, is almost identical with a judgment of dissolution. There are ways short of filing for a legal separation that allow you to do what you want to do, but you'll need to consult an experienced attorney to make them happen effectively.


Whenever the judge's signed order is entered.

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Your filing for legal separation does not determine of when you actually, for purposes of property analysis, are legally separated. The issue becomes one of when you do not hold yourself out to be man and wife, you each have your own accounts, and you do not live together, these factors lead to a determination that you are (for purposes of assets and debts division) separated. The County clerk does not have the ability to determine when you are legally separated for purposes of property division. There are a number of issues in regard to your acquisition of new property, unless you are paying cash with separate property funds, you are probably going to have to obtain financing. If you have to obtain financing during a period of time where you are still legally married, the lenders are not going to sign off, and escrow will not close, unless your perspective ex deeds any interest she has in the property back to you, even though she is clearly not on title.

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