Legal Separation vs Divorce


You’ve decided to take action in your marriage because it isn’t working out as you’d hoped. Ultimately, you have two legal recourses: legal separation or divorce. The main difference is in the permanence of your decision. When you separate legally, you can live and act as separate individuals but can join back together as a married couple. However, after you divorce, your decision to end the marriage is final and you’re officially single. Let’s take a look at other key differences between the two options.

What is Legal Separation?

California is one of the states that allow married couples to legally separate. A legal separation is an official court order from the state where you and your partner live apart and carry on your lives separately. This option allows you to create financial boundaries, determine who is responsible for assets and debts, and detail child custody and support rules, without the permanence of divorce.

Reasons to Choose Separation Over Divorce

You may choose to ask a judge for a legal separation as opposed to a divorce for the following reasons:

  • You aren’t sure about completely dissolving your marriage but want to live apart
  • You aren’t sure about completely dissolving your marriage but want to clearly define financial, property, and co-parenting matters
  • Your religious observance prohibits divorce
  • Your personal views or beliefs rule out divorce as an option
  • You want to retain certain benefits of marriage, such as
    • Staying on your partner’s health insurance plan
    • Receiving tax benefits
    • Receiving government benefits (e.g. Social Security)
  • You have not met the residency requirements to file for divorce (see below “California Requirements”) but want to start the process of legally separating

To ensure your rights are protected and your goals are met, you can work with an attorney to thoroughly review your case and present it to the judge.

California Requirements for Separation

To file for legal separation in California, either you or your partner must be a legal resident in the State. You must also provide a reason for why you are choosing to separate. Because California is a “no-fault” state, you actually don’t need a specific reason to point out what your partner did wrong (i.e. irreconcilable differences).

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What is Divorce?

A divorce, or “dissolution of marriage” is a permanent end to your marriage. You become legally single and are allowed to remarry, if you choose. Generally speaking, you can choose to litigate or mediate your divorce, so you should read about the major differences and benefits to each method. Similar to a legal separation, you come to an agreement or ask a judge to order how money, assets, debts, custody, and support are handled.

Reasons to Choose Divorce Over Separation

Though legal separation goes through many of the same motions as divorce, the key difference is that divorce is a final end to your marriage. This means you would be legally single and can remarry. Remember, this means you cannot use your spouse’s health care plan or file joint tax returns.

Legal separation can be used as a trial if you aren’t sure about completely dissolving your marriage and forgoing the benefits associated with it. Divorce is an option to cut legal ties and your involvement in joint financial matters or programs afforded to married couples.

Once again, the most efficient and comprehensive way to achieve your goals in a divorce is to work with an attorney. In the case of a divorce, a divorce consultant is often the most flexible and cost-effective choice that helps you through this challenging time.

California Requirements for Divorce

California has time-bound restrictions before filing for divorce. Either you or your spouse must have lived in California for the last 6 months. In addition, the same person must have lived in the filing county for the last 3 months. If you or your partner do not meet these California residency requirements, you can opt for a legal separation, then file for divorce after the appropriate amount of time has passed.

Requirement exception for same-sex marriages

One exception to the residency rule is with regards to same-sex couples. If you originally got married in California, but currently live in a state that will not allow you to dissolve your marriage, you can still file for divorce in California. However, this may complicate other issues like money, property, support, or your children, so feel free to consult with us, as we have experienced over a decade of handling complex same-sex divorce cases.

Next Steps

Both legal separation and divorce have their advantages, so their nuances are important to recognize and understand when making this major life choice. Before you make a decision, keep in mind these two mantras:

  1. You can have an amicable separation or a peaceful divorce, so you don’t have to be emotionally and financially drained from this process
  2. Write down your goals for your life during these times. You still have the ability to make strides in a positive direction, no matter whether you are separating or ending your marriage.

If you have questions or want a  deeper understanding of the separation or divorce process, ask us—we’d be happy to help. Consider us a compassionate and friendly resource for you during this emotional time.

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8 responses to “Legal Separation Vs. Divorce in California

  1. I’m a stay at home wife/mom of 9 yrs living in CA. It’s getting harder to be in my marriage but I need to wait it out and make it to the 10yr mark to receive full benefits from my husband. Can I do so if I separate now in my 9th yr of marriage and divorce when it’s 10?

    1. Hi Arista – the date of separation is the determinative date, not the date of divorce. However, you must remember that the 10-year mark for spousal support is not a hard and fast rule. Permanent spousal support is awarded based on the factors set forth in Family Code 2640. Make sure to consult with an attorney about the proper action plan.

  2. In a divorce, the house is definitely sold, right? I don’t have the funds to buyout my spouse. But in a separation, we can keep the house, right? I’d like my son to stay in our neighborhood through high school.

    1. Hi Manny – no, the house is not definitely sold, but it might have to be. If neither of you can afford buying the other out, the house would need to be sold so that you can each receive your respective financial interest in the home. If you work with a mediator, you might be able to come up with a creative solution where you can each get your interest out of the house over time, but still preserve it for your children.

  3. I see there’s differentiation between community property and separate property. I bought a classic car before I ever met my wife. I also “bought” my house before meeting my wife. I put quotes on the house because there’s obviously a mortgage which I’ve been paying throughout our marriage. My wife is a house wife. She has no financial contribution to the mortgage. In this instance, is the classic car and the house separate property?

    1. Hey Manny – in your example, both the house and car would be your separate property. However, since you are paying down the principal of your mortgage during marriage using funds earned during your marriage (community property income), the community gains an interest in the home during marriage. Unless you are making payments on the car, or have spent significant funds during marriage improving it, it will most likely remain entirely your separate property.

  4. Hi, I was married since 2004, we’ve been separated 10 years ago but never divorced, what rights or am I entitled to anything?

    1. Hi Rena – there’s a lot to unpack here, but you could be entitled to all community property acquired/earned during your marriage between 2004-2014. If you’d like to discuss more, please schedule a consultation and I’d be happy to dig deeper with you.

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