Legal Separation In California—How Is It Different From Divorce?

Divorce ends a marriage no matter where you go, but legal separation is a concept that is different in every state. So what does it mean in California? Is a legal separation a step on the way to divorce? Is it a separate status? Is it easier to get a legal separation than to get a divorce in California?

Since family law attorneys handle legal separations as well as divorce, the team at Holstrom, Block & Parke, APLC gets a lot of questions about legal separation in California. We can explain the benefits and drawbacks in your particular situation, but here is some helpful background information to consider.

In California, Legal Separation is a Status

Some jurisdictions treat separation as a requirement for divorce while others don’t recognize a concept of “legal separation” at all. California is different. In our state, legal separation serves an actual legal status like, married or divorced.

Because it is a legal status, to become legally separated, you need to go through most of the same formalities as you would for a divorce. Couples who go through the legal separation process have their lives separated with respect to financial matters. One partner may obtain alimony. And if there are children, the court can issue orders assigning custody and visitation time, as well as child support obligations.

The Marriage Remains

When a couple is legally separated, they are still married even though they live apart and have disentangled many aspects of their lives. This means that neither spouse may remarry unless they obtain a divorce.

Some couples choose legal separation for personal or religious beliefs. Others choose to file for legal separation because they can live apart while continuing to enjoy tax benefits and a spouse can still benefit from the other spouse’s insurance coverage. Couples who are legally separated are considered married for Social Security purposes, so some couples might elect to file for legal separation until they have been married for ten years, which would make one spouse eligible for derivative benefits based on the other spouse’s work history. However, time spent in legal separation will not generally count toward the “ten-year rule” for assessing alimony obligations in California because the law allows for the subtraction of time a couple lived apart.

Legal Separation Can Be a Stepping Stone Toward Divorce—But Doesn’t Have to Be

For various reasons, many couples choose to use legal separation as a stage on their way to a divorce, although this is not required in California like it is in some states. One reason couples file for legal separation is that they do not yet qualify for a divorce. To get a divorce in California, at least one member of the couple must have lived in the state for the past six months or more, and they must have been a resident of the county where they are filing for at least three months. There is no equivalent length of residency requirement for a legal separation and no waiting period. One spouse must live in California to file for legal separation, but there’s no minimum time requirement.

Before a legal separation is finalized, it can be changed to a divorce. For instance, the petition can be changed to divorce once the residency requirement is satisfied or if one spouse changes their mind.

You Still Need an Attorney

Even though a couple is legally still married when they obtain a legal separation, they establish legally binding arrangements that affect their lives going forward just as they would in a divorce. That means you need advice and representation from an experienced attorney to protect your interests when you are seeking a legal separation. It is important to understand your rights with respect to:

  • Which property is classified as community and which property is separate
  • A plan for the fair and reasonable division of community property and debts
  • Whether one spouse will pay domestic partner support (alimony), how much payments will be, and how long they will last
  • Whether one spouse will cover insurance or other expenses
  • How tax credits may be allocated
  • Parenting plans for custody and visitation
  • Child support obligations

Once you resolve these issues through a legal separation, your finances will be protected going forward. If you later decide to divorce, it will not be necessary to revisit all of these issues, so the process will be much less difficult than starting a divorce from scratch.

Holstrom, Block & Parke, APLC Helps Secure the Best Terms in Legal Separation and Divorce

If you are considering legal separation, divorce, or both, our team would be happy to explain the ramifications in your particular situation. With 300+ years of experience in family law, we understand the most effective ways to protect your interests. To get started, contact us today to schedule a consultation.


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