Legal Separation vs. Divorce in California

When you can no longer live with your spouse, California law offers two legal options to settle your situation so you can move forward with your life. You can get a divorce, or you can obtain a legal separation.

It is important to understand the distinction between the two and the outcome and ramifications of each option. Many people think they understand the differences, but their knowledge is often based on assumptions that are outdated or involve the laws of other states. In some jurisdictions, legal separation is a stage on the path to divorce, but in California, the situation is quite different.

What is Legal Separation in California?

Legal separation involves much more than simply living apart. Living apart is physical separation. When a couple is legally separated in California, it means the courts have granted a judgment of legal separation, which is a court order similar to what couples receive after a divorce. The court order can:

  • Divide marital assets
  • Allocate marital debts
  • Order one spouse to pay spousal support to the other
  • Establish child custody and visitation arrangements
  • Order child support
  • Require one spouse to pay the attorney’s fees of the other

Essentially, the court order after a legal separation does almost everything that a court order does in a divorce case. However, the order specifies that the couple remains married.

With Legal Separation, the Marriage Continues

Although spouses have separate living situations and finances after a legal separation, they remain married. This means they cannot marry someone else.

Some couples choose to file for legal separation because they do not want a divorce on moral or ethical grounds. In some religions, for instance, divorce prevents individuals from participating fully in worship practices or holding leadership positions.

In other situations, couples choose to legally separate because it provides a safe, structured framework to address problems in their relationship. If one spouse has problems with gambling or substance abuse, for instance, a legal separation protects the other spouse from being drawn into debt or having to live with the consequences of the problem. It can signal that commitment and hope remain for the relationship.

A Divorce Ends a Marriage

Divorce is often referred to in legal terms as a dissolution of marriage. It means to dissolve or put an end to the marriage. After a divorce is finalized, the marriage is over. This is in contrast to a legal separation, where the marriage continues, although under different circumstances.

The continuation of marriage is the primary difference between a legal separation and a divorce. After either a divorce or legal separation, the couple can remain in their legal state indefinitely, or they can change their status. A legally separated couple can divorce. A divorced couple can remarry.

If one spouse fails to abide by the terms in a court order granting divorce or legal separation, the other spouse can ask the court to enforce those terms. Both processes result in terms established under a legally binding order of the court.

Legal Separation Provides an Option for Someone Who Does Not Want to Wait

To get divorce in California, one spouse must have lived in California for at least six months. In addition, they must have resided for at least three months in the county where they file divorce in court.

While one spouse must live in California to file for a legal separation, there is no minimum time of residency required. A spouse who does not want to wait to meet residency requirements can file a petition for legal separation and later amend the petition to ask for a divorce.

There is also no waiting period for a legal separation. While a divorcing couple must wait until at least six months from the time a spouse rec0eived divorce papers or responded in court to the petition for divorce, the law imposes no such requirement on legal separation. As a practical matter, however, it will take time for the legal process to unfold in a legal separation, just as it does in divorce.

Legal Assistance is Crucial for Legal Separation

In terms of the paperwork filed in court, the process of legal separation is quite similar to divorce. In fact, the courts use many of the same forms.

Moreover, the process of preparing for a legal separation also involves consideration of multiple issues. Both spouses should understand their legal rights regarding marital property, debts, spousal support, and issues related to children. In divorce and legal separation, the court will establish arrangements that affect the lives of both spouses for years to come. Therefore, it is wise for spouses to retain their own attorney who can focus on protecting their interests.

The attorneys may negotiate cooperatively to develop terms for the legal separation or divorce. This often provides both spouses with the outcomes that best suit their preferences. If the parties do not reach an agreement outside of court, the judge will have to hear evidence regarding the issues, and then issue a ruling on the specific terms.

The Process for Legal Separation and Divorce in California

In either divorce or legal separation, the legal process begins when one spouse files a petition with the court and ensures that the legal paperwork is officially served on the other spouse. That spouse should then respond.

At that point, the parties can work to develop and write out terms for the legal separation of divorce or they can decide to allow a judge to settle the issues. Attorneys will need to support each spouse’s interests either through negotiations or litigation. Because the same issues need to be resolved in a legal separation as in a divorce, the process is just as complex and just as crucial. Remember, whether the process ends in divorce or legal separation, the court will issue an order with legally binding terms that both spouses must live by.

Holstrom, Block & Parke, APLC Protects Your Interests in Legal Separation and Divorce

The Certified Family Law Specialists and associates at Holstrom, Block & Parke, APLC have the knowledge and experience to protect your interests in an array of family law proceedings, including both legal separation and divorce.

If you’d like to discuss legal separation as a quick option to avoid delays, a protective step in a challenging relationship, or as a potential long-term solution, we would be happy to discuss your options so you can make an informed decision for your future. Just schedule a confidential consultation online or call us at 855-426-9111.

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