“Nanny-gate” might have happened a year ago, but are Ben Affleck and Jennifer Garner still divorcing? It looks seems like maybe not.
Are Ben and Jen Still Divorcing?
It’s been over a year since it was revealed that Affleck, 43, had an alleged affair with nanny Christine Ouzounian. And since then, it appeared that Garner, 44, and Affleck were headed towards divorce, but according to a source close to the couple, the divorce is “on hold.”
“Jen mentioned that the divorce was going through very soon, and then a few weeks ago, things changed,” a source “close to Garner” has said. “It does not seem to be moving in that direction.”
Neither party has filed formal divorce papers either, so it appears we will have to wait this one out. For other couples in similar positions, it’s possible to work through an affair, and even possible to cancel a divorce once proceedings have begun.
Cancelling a Divorce
Just because a couple begins divorce proceedings, that does not mean they have to continue and complete a divorce. In fact, a divorce can even be called off once all the paperwork has been filed.
Stopping a divorce once the paperwork has been filed is dependent on the intentions of both spouses. Namely, both spouses need to agree why the divorce is being cancelled. Both spouses also need to agree to get back together and officially cancel the divorce.
The next consideration is where the paperwork is in the process of the filing. If a judgment has not been formally issued then the parties can stop the divorce upon mutual agreement. Naturally, it’s better to stop the divorce earlier in the process, rather than once it has gone through the majority of the process.
Request to Withdraw Divorce Petition
If both parties have agreed to cancel the divorce, the couple next needs to file a request to withdraw their divorce petition. This may require additional filing fees and court costs, and may also require that the couple attends counseling or mediation so that a court can determine if the decision to cancel the divorce is not only mutual, but based on a sound agreement.
Finalizing Withdrawal
Once the withdrawal is finalized, all divorce proceedings are cancelled, and the couple remains legally married. Property returns to being considered community property and any child custody agreements are cancelled.
Issues to Consider
There are some additional considerations to take if you wish to stop the divorce hearings. They include the following:
- A spouses can change his or her mind at any point and continue with the divorce
- Were there any reasons for why a spouse might have considered full custody, such as abuse or neglect? Do these issues need to be resolved before the couple can continue their marriage?
Pretending to Stop the Divorce
Sometimes a couple will pretend to stop the divorce in an attempt to delay the finalization of the divorce. This can be for any number of reasons. Falsely attempting to cancel a divorce may be considered divorce fraud and will be subject to investigation. The party attempting to falsely stop a divorce may face legal consequences, such as contempt of court or even criminal charges. This is why a court will often require counseling or mediation in order to determine that the couple actually wants to continue their marriage.
Another Option – Legal Separation
While divorce might seem like the only option, remember that legal separation is also available. Legal separation allows couples to live apart and take a “break” from each other, while also ensuring that each spouse’s legal rights are protected via a legal separation agreement. Legal separations can also be called: “judicial separation”, “separate maintenance”, “divorce a mensa et thoro“, or “divorce from bed-and-board.” All these terms refer to the legal process by which a married couple formalizes a de facto separation while remaining legally married.
Formal Legal Separation Agreement
It’s always advised that you sign a formal legal separation agreement. This agreement outlines child support and visitation, property division, and any other aspect of a marriage. An attorney will be able to prepare this legal and binding document. This will offer you legal protection should your spouse fail to live up to his or her obligations and will also also hold up in court.
The following should be included in the legal separation agreement:
Spousal Support
Benefits – With legal separation spouses are able to retain certain benefits that were available during the marriage, such as health insurance.
Home Residency – If a couple shares a home, it should be decided at this time what will happen to the residency during the separation. The agreement should include information regarding who is able to live in the home, who is responsible for maintaining the home, and who is financially handling the home.
Joint Accounts – A legal separation agreement outlines who has access to those joint accounts such as joint checking, savings, and credit accounts. It’s often advised to close or freeze these accounts during the separation. Each spouse will then need to obtain their own personal accounts.
Protection from Acquired Debt – A legal separation agreement will shield you from being responsible for debt acquired during the time of the legal separation.
Why Pursue Legal Separation?
There are advantages with legal separation, including:
- Spouses are able to maintain benefits such as a spouse’s health care plan or military benefits.
- Staying legally married for 10 years allows couples certain social security benefits.
- The separation period allows for a “cool off time,” during which parties can work to resolve their differences. Couples can then decide to either pursue a divorce or resume the marriage.
- In some religions divorce is not allowed or recognized. Legal separation allows these religious couples to live separate lives while still remaining married and true their faith.
- Legal separation can be used to solve immediate problems in couples who are uncertain about moving forward with divorce.
Steps to Follow for Legal Separation
Here are the steps you will take to acquire a legal separation:
- Consider working with a family law attorney that can advise you on all the necessary steps of your legal separation.
- You and your spouse will need to decide on grounds for the separation
- Fill out a Form FL-100 Petition. This form includes options for divorce (dissolution of marriage) or legal separation.
- If you have children under 18, you will need to complete Form FL-105/GC-120 which provides information to the court regarding children.
- File Form FL-100 at your local county court. Pay any necessary fees. If you receive public benefits or have low income, you might be eligible for a fee waiver.
- Serve your spouse with a copy of the court papers if they were not filed together. There will need to be proof of the serving, which can be done through various means such as a process server. A family law attorney can advise you on how to obtain this proof.
Still Considering Divorce?
If following your legal separation you and your spouse decide to move forward with a divorce, you will still need to file a divorce petition and go through the formal divorce process. Since a legal separation agreement has already been created and you mutually agree all aspects of your marriage, chances are you will be able to file an uncontested divorce. If there are still unresolved issues, you might decide you need a court’s help to come to a decision. It’s important to remember though that just because you are legally separated, that does not mean you are officially divorced. A judge will need to sign off on the final divorce papers and agreement before you can declare yourself “single.”
Working with a Divorce Attorney
It’s always advised that you consider working with a family law attorney. They will be able to advise you on any number of issues, including: child support, spousal support, marital property division, child visitation, etc… A lawyer from the expert law firm of Divorce Law LA will be able to guide you through the divorce process. The Divorce & Family Law Offices of Divorce Law LA will provide you with the highest level of expertise and professionalism from our skilled attorneys. Our Divorce and Family Law Practice spans a wide spectrum of areas that include: divorce, high net-worth divorce, marital property division, child custody and visitation, and child support.
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