“A petition for dissolution of marriage may be impermissible because the parties have failed to meet the statutory residency requirements. [Fam. Code, § 2320] In the alternative, an attorney may counsel a client to file a petition for a legal separation. Although a petition for legal separation does not have a residency requirement, it does not terminate the parties’ marital status.”
“If a party wishes to file a petition for dissolution of marriage, but does not have the required residency within the state or within the county, he or she may file a petition for legal separation and thereafter amend the petition to seek a dissolution of marriage when the residency requirements have been met. The jurisdictional date on which the six-month time period for the entry of judgment of dissolution of marriage commences to run is the date of service of process or appearance by the respondent in the legal separation proceedings. [Fam. Code, § 2321, subd. (a)]”
“If the petition is amended to seek a dissolution of marriage after the initial filing of a petition for legal separation, notice to the other side must be given before the court is authorized to proceed to grant the dissolution of marriage. [Fam. Code, § 2321, subd. (b)] Further, if the respondent has not appeared, service must be in the same manner as provided for service of an initial summons and petition. [In re Marriage of Rhoades, 157 Cal. App. 3d 169, 211 Cal. Rptr. 531 (4th Dist. 1984)]”
“The grounds for legal separation are the same as those for dissolution of marriage: (1) irreconcilable differences that have caused the irremedial breakdown of the marriage, (2) or incurable insanity. [Fam. Code, § 2310] Additionally, a proceeding for legal separation can resolve all matters that a judgment of dissolution of marriage would resolve, with the exception of the status of the marriage. [Faught v. Faught, 30 Cal. App. 3d 875, 106 Cal. Rptr. 751 (2d Dist. 1973)]”
“[I]f one party seeks a legal separation, and the other requests a dissolution of marriage, the request for dissolution will be granted. [Gionis v. Superior Court, 202 Cal. App. 3d 786, 248 Cal. Rptr. 741 (4th Dist. 1988) (holding that where the wife filed petitions for legal separation and for dissolution of marriage, and the husband brought a motion for bifurcation of marital status and entry of judgment of dissolution, the trial court could not deny the husband’s motion because of the strong public policy favoring termination of a marriage that is unsalvageable)]”
[California Civil Practice Family Law Litigation [certain citations omitted]]
