Written By:
Divorce.com Staff
Legal Separation vs. Divorce in California: What’s the Difference?
When a married couple or domestic partners reach irreconcilable differences, many assume their only option is filing for divorce in California. However, California family law offers an alternative that allows couples to separate financially and legally without ending the marriage: legal separation.
Understanding the difference between legal separation vs. divorce in California is essential, as each option carries distinct legal, financial, and personal consequences.
What Is Divorce in California?
A divorce (legally called a dissolution of marriage) permanently ends a marriage and restores both spouses’ legal status to single.
Divorce has two main components:
1. Resolving Divorce Issues
This includes decisions about:
Child custody and visitation
Child support
Spousal support (alimony)
Division of property and debts
These issues may be resolved:
Privately between spouses
Through mediation
Through attorneys and court proceedings (contested divorce)
2. Obtaining a Divorce Decree
The marriage does not legally end until the court issues a final judgment of dissolution, commonly called a divorce decree.
Even if spouses agree on everything—or have a prenuptial agreement—a divorce cannot be finalized without a court-issued decree.
Requirements for Divorce in California
To file for divorce in California, the following requirements must be met:
Residency requirement
One spouse must live in California for 6 months, and
In the filing county for 3 months
No-fault divorce
California only allows divorce based on irreconcilable differences
Fault does not affect property division or support
Mandatory waiting period
Divorce cannot be finalized until 6 months after filing and service
This waiting period applies even if the divorce is uncontested.
When Divorce May Be the Better Option
You may want to choose divorce instead of legal separation if:
You are certain the marriage is over
There is no financial or legal benefit to staying married
You do not want your spouse to remain your legal next of kin
You want the freedom to remarry
Your long-term plan already includes divorce
If divorce is inevitable, skipping legal separation can save time and money.
What Is Legal Separation in California?
A legal separation allows couples to formally divide finances, set custody and support terms, and obtain enforceable court orders without ending the marriage.
The legal separation process is nearly identical to divorce:
A petition is filed
The other spouse responds
Property, custody, and support are resolved
A judge issues a judgment of legal separation
The key difference: you remain legally married.
Requirements for Legal Separation in California
Legal separation has fewer eligibility requirements than divorce:
No residency requirement
Only one spouse must live in California
Same court forms and procedures as divorce
No mandatory six-month waiting period
This makes legal separation useful when immediate legal protection is needed.
Reasons to Choose Legal Separation Instead of Divorce
Legal separation may be preferable if:
You are unsure whether you want a divorce
Religious or personal beliefs discourage divorce
You want to preserve health insurance benefits
You want to file joint tax returns
Your spouse needs to remain married to qualify for Social Security or military benefits
You want enforceable financial and custody protections quickly
Legal separation can later be converted into divorce if desired.
Key Differences Between Legal Separation and Divorce in California
Residency and Waiting Periods
Requirement | Divorce | Legal Separation |
|---|---|---|
CA residency required | Yes | No |
6-month waiting period | Yes | No |
Ends the marriage | Yes | No |
Legal separation allows couples to obtain court-enforced orders faster than divorce.
Legal Rights After Separation
Legally separated spouses:
Remain next of kin for medical decisions
Retain inheritance rights under California law
Stop accruing community property going forward
Income earned after legal separation belongs solely to the earning spouse.
Reconciliation Is Easier with Legal Separation
Divorce is permanent. If spouses reconcile, they must remarry.
Legal separation can be reversed by filing:
A Motion to Vacate (if finalized), or
A Motion to Dismiss (if pending)
Reconciliation restores the original marriage date, which can impact future support calculations.
Divorce Allows Remarriage
A divorced person is free to remarry.
A legally separated person cannot remarry unless they later obtain a divorce judgment.
Financial Considerations
While divorce can be financially challenging, it can also offer benefits in certain situations:
Greater individual control over finances
Retirement account withdrawals may be allowed without the usual 10% penalty (subject to IRS rules via Internal Revenue Service)
Potentially increased college financial aid eligibility for children
Where Divorce Doesn’t Have to Be Harder Than It Has to Be
Divorce.com helps California couples complete uncontested divorces and legal separations efficiently, accurately, and with minimal stress—while remaining compliant with state law.
Frequently Asked Questions
Do I Need a Lawyer to File for Legal Separation in California?
No. Legal separation can be filed without an attorney using California court forms. However, legal advice may be helpful for complex financial or custody matters.
How Much Does Legal Separation Cost in California?
Court filing fees are the same as divorce—typically $435–$450, unless you qualify for a fee waiver through California Courts.
How Long Does Legal Separation Take in California?
Because there is no waiting period, legal separation can be finalized as soon as paperwork is completed and approved by the court.
How Long Is a Legal Separation Valid?
Indefinitely. A legal separation remains in effect until:
It is reversed, or
It is converted into a divorce
