Legal Separation vs Divorce: What’s the Difference?

Legal separation vs divorce? Learn about the key differences and all the helpful information you need to know.

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Introduction

Nobody comes together to tie the knot with someone they love with the intention of falling apart. Plans, hopes, and dreams for the future are all part of the wedding day. For some, they come true. For others, not so much.

For one reason or another, some may find themselves wishing that the wedding day never happened. If this sounds like where you are at in your marriage, what do you do? Should you file for divorce? Or, would a legal separation be better? Does it matter? Is there a difference?

Knowing your options is an important step when it comes to questioning your marriage. So, let’s talk about legal separation and divorce – and how they are different.

What is Legal Separation?

Thanks to the law in California, married couples can legally separate without going through a formal divorce. In other words, you will receive a formal court order granting you separation from your partner – meaning that you can live apart from one another and live two separate lives. You can set boundaries on finances, separate assets and debts between each other, create a plan for child custody and support, and so on. If you are thinking that it sounds like a divorce, you’re right – it does. Except for one thing: you aren’t dissolving the marriage. You are not free and single and able to remarry.

Reasons to Choose Legal Separation

So why would someone choose legal separation rather than a divorce? Why would someone want to leave a marriage while still legally keeping ties to their spouse? Everyone’s reason may be different, but below are a few common reasons couples choose this decision:

• Not 100% certain that a divorce is an answer.
• Trial run before the divorce.
• May try to work things out, but want to establish boundaries with assets, debts, and other financials.
• Religious reasons.
• To maintain the benefits of marriage, such as medical insurance, tax benefits, government benefits, and so forth.
• Find it easier to co-parent.
• Unable to divorce due to residency requirements. 

California Law Requirements

According to California law, in order for the court to grant a legal separation, one spouse must be a resident of the state. Though keep in mind there is no time frame of residency required. In filing paperwork for the separation, you will need to state a reason, but it doesn’t have to be a specific reason since it is a no-fault state.

What is Divorce?

A divorce formally dissolves a marriage. Or, rather, it permanently ends it. You will be able to move through life as a fully single person again and can even marry someone new if you choose. You will go through the process of separating assets, debts, and financials – and you decide on child support and custody, too.

Reasons to Choose Divorce

Whatever brings someone to want a divorce will be unique to the couple, but this decision is really only chosen when it has been decided to permanently end the marriage. There will be no responsibility when it comes to the other person – no tax benefits, healthcare coverage, and so forth.

California Law Requirements

The state of California requires one spouse to reside in the state at least 6 months before filing for divorce. And that person must also have lived in the same county for the prior 3 months before filing. Some people will file for a legal separation while waiting for these requirements to be met.

Same-sex couples who were married in California but do not live in a state where their marriage can be dissolved can file for divorce – without being required to meet the residency demands. 

Legal Separation vs Divorce

Let’s break down some of the differences between a legal separation and a divorce. We understand why someone may choose a legal separation over a divorce, but when it really comes down to it, there are a few key differences.

Maintain limited rights in a legal separation. With a legal separation, you still will each be responsible for making the medical decisions of the other and have inheritance rights, too, But you will not have community property during the time you are separated. The money you make and the assets you purchase during this time are yours.

Avoid the legal requirements of divorce. The state of California has certain requirements for divorce, such as a residency requirement in which one-half of the couple must live in the state for a minimum of 6 months before filing for divorce. Plus there is a 6-month waiting period between filing the petition and the issuance of a divorce decree. Legal separations can happen without all of these requirements – they can be put into effect immediately.

Have the opportunity to rekindle your love. When you are legally separated, you still have a chance to rekindle your love and work on your marriage. Yes, you are living two separate lives but you are technically still married. So, if you decide that you do still love each other and want to make it work, it is an easy fix – and the marriage is still intact.

The Need for an Attorney

When it comes to legally separating and divorcing in California, they may each have advantages for a couple. One may even seem like more of a logical option than the other based on your situation. However, it is always a good idea to talk this over with a legal expert. A divorce attorney who is familiar with the process and the specifics as it relates to your situation can help you decide which route is the best for you to take.

Legal separation has some great advantages – especially for those couples who aren’t ready to permanently call it quits. But for those who are, it may not make sense at all to even try a legal separation, rather just push forward with the divorce.

Protecting yourself no matter which method you choose is important. And the only way to do that is through an experienced attorney.