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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25 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.

  5. Wife and I married for 22 years. She has her own notary business that she works partime but failing. She is also an at home mom. For our youngest of 12 and 16 year old. She is having a relationship outside of our marriage and agrees to an amicable end to our relationship in whatever is most financially beneficial for me. She is agreeing to stay married and do nothing except do our seperste thing, sign a post nuptial agreement, legal seperation, or divorce. She states she only wants us to be cordial and try and co-parent and also co-habitate if at all possible.

    1. Hi Brandon – sounds like you have some options. Feel free to schedule a time for us to chat more.

  6. Married for a year legally. And amicable been separated for 4 months. He refused divorce (claims he is still in love). I on the other hand, being separated for 4 months, I have adjusted to life without him. We have no kids together and no house. We are not on each other’s insurance. So really there’s no shared assets. I am now able to buy a house. Will legal separation keep him away from claiming my house as his? Or should I go ahead and force divorce?

    1. Hi C.K. – since you are technically still married, buying a house at this time could expose you to claims of ownership by your husband. There are a number of steps you should be taking to protect yourself. Schedule a consultation and we can talk more.

  7. Hi Janice – I do not know of any changes to the laws that would restrict him staying on your health plan as long as you are legally married.

  8. I’m 75 years old we’ve been married for almost 30 years at the end of this year will be 30 we both work for the railroad so the railroad said that if I get a divorce I would not get any of his money and our health benefits I think are combined even though I work for the railroad also everything is connected and the railroad will not give me his portion that I get right now if I get a divorce I would have to work out a spousal payment which at this point I really don’t need but it will sell our house he can pay me out and he can move on he just can’t get remarried and neither can I but everything else is connected the health insurance and all that my question is do you think it’s worth it I’m tired of living with a man who wants to cheat and in California that don’t make one bit of difference in whether he cheats or not in our 30 years I’ve never cheated on him never but that don’t count against anything so when we don’t have any children together and I’ve never been on his life insurance policy he’s put his son down his mother did pass away and he did get a very large amount of money for the sale of her house but I’m not included in that because that was in her living trust to both her sons they split the house I know that I’m not worried about that I’m just tired of being treated like I did something wrong

    1. Hi Barbara – I can’t tell you whether or not getting a divorce is “worth it”. That is a very personal decision for you and your family. However, you want to talk through some of the financial expectations post-divorce, I’d be happy to speak to you in a consultation, which you can book using the button at the top of the screen.

  9. Been married 20 years, I’m a disabled vet, purchase the hómé in 1979, but due to remodels her name is on the title. Do I need to sell the house on a separation?

    1. Hi Roger – during a divorce, couples can either choose to sell the house, or if they can agree, one party can buy the other out. The amount of the buy out is determined by a number of factors and reimbursements.

  10. Hello, during legal separation (not divorce), do I have to buy my spouse out or can we continue to both be on the mortgage since we are not divorcing? Also, do we have to report it to the lender that we filed for legal separation or that’s just in divorce?

    1. Hi Mary – The process for a legal separation is the same as divorce. Therefore, you and your spouse will either need to enter into an agreement about what you’d like to do with the house, or it will be sold. If you can both agree on an arrangement to continue holding the property jointly or to buy each other out, you can do that. Each lender has their own reporting requirements, so you should talk to your bank about their specific reporting requirements.

    1. Hi Carol – you and your spouse can do whatever you’d like during your marriage in regard to your joint finances as long as you both agree. You may want to consult with an attorney to discuss what, if any, separate property interest there may be in the house in order to calculate the buyout appropriately.

  11. Hi, I’m divorced, I want to apply for a visa but don’t like the divorce option, can I choose the single option in this case since I am no longer married? Is it considered deceptive to the visa application?

    1. Hi John – unfortunately, I don’t understand your question. However, it sounds like you may want to talk to your immigration attorney about what is best for you.

  12. I’ve been dating a married man for almost 2 years. His wife left him a few years back, but has since returned. He didn’t divorce her those 2 years she was gone, because he didn’t want to split his assets, plus he didn’t think he would want to remarry…until he met me. Their marriage has been over (emotionally) for years now. We plan to buy a house and get married, but he’s still married. If he were to get a Legal Separation, would his wife be entitled to “our” home?

    1. Hi Vette – first, if he gets a legal separation, you and him will not be able to get married. A legal separation divides asset and addresses issues of support, but he will still be legally married. He will need to get a divorce and become officially single before remarrying. In regard to the house, it depends on what money is used to purchase the house. Any assets purchased with post-separation separate property funds are presumed to be separate property and the ex-wife should not be entitled to it. However, if they are still legally married at the time of the purchase, she may need to sign a quitclaim deed absolving any interest she may have in the newly purchase home. If you have any other questions, feel free to schedule a consultation with me.

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