By Divorce.com staff
Updated Sep 14, 2023
Omar Gastelum Updated Sep 14, 2023
When a married couple or members of a domestic partnership confront irreconcilable differences, they often assume their only option is filing a petition for dissolution with their local superior court and severing completely their legal relationship with their spouse or domestic partner.
However, California family law has a variety of other options for couples calling it quits besides initiating what we traditionally think of as divorce proceedings. Among them are legal separations, which will allow couples to protect certain financial and personal interests without ending their marriages.
We’ll be the first to admit it: when it comes to legal separation vs divorce in California, the law is confusing. Everyone probably thinks they know what it means to get a divorce, but the ins and outs of legal separation are not as clear.
Let’s start with the basics.
What is Divorce?
When defining divorce, it is helpful to think of divorce in two distinct parts. First, there is the negotiating you picture when you imagine a divorce case. Second, there is obtaining the divorce decree or the final judgment of dissolution.
The negotiation part can play out in a number of ways. In a contested divorce, the negotiating part of divorce often means hiring a family law attorney and going to court to work out family law issues like spousal support (also known as alimony), child support, child custody, and the division of property. In an uncontested divorce, it could mean working out an agreement with your spouse regarding child support, custody, and financial issues one-on-one or with the help of a mediator.
The second part of the California divorce process, obtaining a divorce decree, happens in court. This document is what the court issues to end your marriage, officially resetting your marital status to “single.”
It is possible to obtain a divorce judgment without negotiating any practical terms of your divorce. Maybe you have a prenup in which such terms are already codified, or maybe you and your spouse just didn’t entangle your lives and finances that much in the first place.
However, it is impossible to get divorced without a divorce decree. Your divorce is your divorce judgment, and your marriage isn’t over until you get that judge’s stamp.
Requirements for Divorce in California
There are a few requirements for divorce in California , starting with eligibility. That means one spouse must have lived in the state for six months, and in the county where you file for three months.
Second, you should understand all divorces in California are no-fault, which means neither party gives a reason for divorcing. It also means the judge will not consider fault during property division or support rulings.
Finally, California has specific steps to divorce, including a mandatory, six-month waiting period after filing. To start, one spouse files and serves the other with the petition and relevant paperwork. Then, the couple works out the agreement together, with mediation, or through lawyers. Lastly, a judge finalizes the decision.
Reasons to Choose Divorce Over Separation
There are a few reasons you might choose to divorce instead of legally separate:
- If there is no financial benefit from a legal separation and you think your marriage will eventually end in divorce, then it makes sense not to waste time and money getting a legal separation only to have to spend more of both to get the divorce later.
- If you don’t want to make medical or financial decisions for them if they can’t, you should probably end the marriage, so you aren’t the next of kin.
- If your state doesn’t recognize legal separation, you need a divorce to protect yourself financially.
What is Legal Separation?
By contrast, when a couple wants a legal separation agreement without official marital dissolution, then legal separation could be the perfect option.
The legal separation process closely resembles the divorce process. You still file a petition, your spouse files a response, and you have access to the California family court system if you need a judge’s help to solidify a child support or custody agreement.
You also have access to all of the same resources you would if you were divorcing your spouse. For example, you can still undergo divorce mediation, even if you don’t want the decree of divorce once you’re finished.
Also, you can still seek legal advice from a divorce attorney, and the attorney-client relationship will be identical to what it would be if you were getting divorced.
Perhaps most importantly, the terms of your legal separation will be 100% legally recognized, binding, and enforceable. The only difference is that these terms will be stamped into existence on a legal separation judgment instead of a judgment of divorce.
However, if you begin the legal separation process and later decide that divorce is the better option for you and your spouse, you still have the opportunity to file an amended petition and end up with a divorce judgment after all.
Requirements for Legal Separation in California
Many of the requirements for legal separation in California are the same as the ones for divorce except for one significant one: there is no residence requirement for legal separation. Moreover, only one spouse needs to live in California to file for one.
The steps to file for a legal separation in California are the same, too. You use the same court forms and follow the same instructions for them.
However, when you are filing for a legal separation, you check that box on the forms instead of the box for divorce. Another big difference is that when the whole process ends, you are still legally married.
Reasons to Choose Legal Separation Over Divorce
There are a few reasons you might choose legal separation:
- You aren’t sure you want a divorce yet; you can figure it out while protecting yourself financially and then reverse the legal separation later if you want.
- If you do not want to divorce because of your children or religion, you can legally separate instead.
- If you want to ensure your spouse has access to your company’s health insurance coverage or you want to file a joint tax return, you should legally separate instead of divorce.
- If you need to stay married for a set time so your spouse can receive Social Security and military benefits, then legally separate until you reach that milestone and then decide what to do.
Differences Between Legal Separation and Divorce in California
Now that you know the legal difference between divorce and legal separation, you might wonder why you should opt for one instead of the other.
Let’s dive into some of the practical differences between the two, so that you can decide which one is right for you and your spouse.
Couples undergoing legal separation get to bypass certain legal requirements of divorce.
One of the most intimidating aspects of getting a divorce is navigating all of the rules and procedures associated with the process. Luckily, opting for legal separation may be a way to (temporarily or permanently) clear some of the red tape.
First, couples who want to get divorced in California must satisfy the state’s residency requirement. Specifically, at least one spouse must reside in California for at least six months before they can legally file for divorce. If you and your spouse do not meet this requirement, your petition will be rejected, and you’ll have to try again later.
Thankfully, California does not have a residency requirement for legal separation. That means if working out the terms of your breakup is urgent, you can file for legal separation instead, and still end up with a binding legal judgment. If you later want to turn your legal separation into a proper divorce, then most of the work will already be done.
Like the residency requirement, the state of California also has a mandatory six-month waiting period. That means between when the petition is filed and when a court will be willing to issue a decree of divorce, you will have a minimum of six months.
However, there is no mandatory waiting period for couples undergoing legal separation. So, if you and your spouse manage to get it done sooner, you will have the legal protections of an enforceable agreement sooner as well.
Legally separated couples maintain (limited) rights and responsibilities.
A marriage consists of a wide variety of rights and responsibilities, some of which you may not want to extinguish, even after you and your spouse have broken up.
For example, a separated spouse is still responsible for making medical decisions should their spouse become incapacitated. This is important protection if one or both spouses does not have a good relationship with an alternative family member who might otherwise be responsible for these decisions.
Additionally, if a separated spouse should die, the surviving spouse maintains the inheritance rights that they would otherwise have in an intact marital relationship. This may be appealing if a separated couple has minor children together, and they want to make sure that more of their assets become available to put towards the raising of those children upon their deaths.
It’s important to keep in mind one very important marital right which is extinguished in cases of legal separation. When a couple is legally separated, they no longer accrue marital property. In other words, if you’re legally separated, the money you make is yours alone, to do with what you please… until you die.
Legally separated couples can reconcile more easily.
You probably know that there is no way to reverse a divorce—they don’t call it a final judgment for nothing. If you and your spouse decide to reconcile, your only option is to remarry, which is less of a legal rewind and more of a new beginning.
However, if you and your spouse decide to reconcile following legal separation, you can reverse the separation at any time.
You simply file a Motion to Vacate Order of Legal Separation if your separation has been finalized or a Motion to Dismiss if it is still underway. In either case, you’re looking at one simple form that you can probably take care of yourself.
Once you’ve done so, you go right back to being married. You even maintain your original marriage date, which has important implications for spousal support should you decide to get divorced or separated in the future.
Divorced people can remarry.
One of the most significant reasons to divorce is to end your current marriage. However, one of the benefits of ending your current marriage is that you can remarry if you want later.
Legal separations are great in specific situations and are particularly appropriate for couples that are not ready or eligible to divorce but need some space from each other to decide. However, they do not finalize the relationship either way.
In other words, when you legally separate, you are still legally married. That means if you end up meeting someone else down the road and decide you want to get married, you first have to file for divorce and finalize that for your first marriage before moving on in a new direction.
Divorced people have a few financial benefits.
Usually, you hear about all the bad things that can happen financially in a divorce, and those are real concerns in some cases. However, there can also be some financial divorce benefits in some situations.
For example, in some relationships, money management was a significant issue between the spouses. Divorce can present an opportunity for greater control over investing and spending money. Also, a divorce is one of the times you can pull money out of retirement without a penalty, which is usually around 10 percent.
Some people with kids can benefit financially from divorce because they have access to more college financial aid. The lowered income of the custodial spouse might give their child more access to funds. (However, child support and alimony should be included in the application.)
Do I Need an Attorney to File for Legal Separation?
It is possible to file for a legal separation without the help of a lawyer. The forms are usually available online and you can complete them without legal representation and submit to the court clerk.
How Much Does a Legal Separation Cost in California?
The fees are the same as they are for divorce in California, so a Legal Separation will be between $435 and $450. If you can’t afford this fee, there is an application for a fee waiver.
How Long Does a Legal Separation Take in California?
Since there is no 6-month waiting period for a Legal Separation in California like there is for divorce, you can get a Legal Separation after you file the forms with the court clerk and get the judgment.
How Long is a Legal Separation Valid in California?
A Legal Separation is valid in California for as long as you want it to be. The judgment is final, just like it is for divorce in California.