While there are similarities between the two, divorce and legal separation are not the same thing. Both involve the couple living apart from each other and have a specific legal agreement in place. However, legal separation doesn’t completely dissolve the marriage the way a divorce does.

In this guide, you’ll learn about the details of legal separation, how it differs from divorce, and how it could be beneficial given your circumstances.

Like divorce, a legal separation requires court-approved agreements to become valid. The couple and their lawyers must complete agreeable negotiations that will be filed with the court. Unlike a divorce, legal separation still leaves the marriage intact, but with certain stipulations. A legal separation agreement covers all the same issues addressed during a divorce proceeding.

In the State of California, the non-filing spouse must agree to a legal separation. If they do not agree, you may need to file for a divorce.

Choosing to pursue a legal separation is not a decision you should make lightly. For most couples, legal separation is the first step to a final divorce. There can be reasons such as tax benefits and religious considerations that lead a couple to choose legal separation before deciding to completely dissolve their marriage.

Other times, a couple will determine that although they may not want to live under the same roof, they may have a good reason not to get a divorce either.

Here are some of the reasons a legal separation might be the right choice for you:

  • Being married affords couples several federal tax benefits and you and your spouse would like to continue receiving those benefits.
  • There is a possibility of you two reconciling your differences. With legal separation, you and your spouse can still choose to keep your marriage in place after spending some time apart. Many couples are able to seek marriage counseling during legal separation and find it helpful.
  • You or your spouse still wants to receive health insurance from the other’s plan.
  • The two of you may be financially unstable and wish to stay legally married to assist with living costs. This also applies if your spouse will be deemed financially unstable as the result of a divorce and you would like to stay married until they can stand on their own.
  • One or both of you don’t believe in divorce due to religious reasons.
  • If you or your spouse are eligible for the other’s social security benefits, the sum of money increases after 10 years of marriage so you may want to stay married longer.
  • You and your spouse may not be ready to negotiate a complete divorce agreement. Legal separation helps protect your rights and financial interests while the two of you decide if divorce is the best decision.

Like any legal process involving family law, there are some drawbacks to choosing a legal separation. While legal separation isn’t divorce, the process is still complicated and emotionally taxing. This is why it’s important to choose the right family law attorney to represent you and protect your interests.

Here are some of the reasons not to choose legal separation:

  • You have plans to remarry or aspire to remarry at some point in the future. Because legal separation isn’t divorce, you’ll still remain married and California state law does not permit being married to two people at once.
  • When there is zero financial benefit from going through the process. If there is nothing to gain from a legal separation, it likely isn’t worth the trouble of going through the process.
  • You want to sever financial ties with your spouse. Legal separation still requires you to act as one party for financial responsibility, except for child and spousal support obligations.
  • You are absolutely certain you want to dissolve your marriage. Choosing legal separation when you’re certain you won’t stay together might only prolong stress and discontentment.

Residency Requirements And Exceptions

For a married couple to get divorced in California, certain residency requirements must be met. At least one spouse has to be a resident of California for at least six months and a resident of the county where they will file for divorce for at least three months immediately before filing the divorce petition.

Partners who originally formed their domestic partnership in California don’t need to fulfill any residency requirements to get a divorce. The relationship can be severed no matter where the partners are living. However, partners who registered their domestic partnership in a different state will have to meet the same residency requirements that married couples must fulfill.

If neither spouse or domestic partner can meet the residency requirements, one of them can file for a legal separation and then file for divorce later once they meet the residency requirements.

In California, the courts don’t require either spouse or domestic partner to show fault or bad behavior to be able to initiate a divorce or legal separation. California is a “no-fault state”, meaning that either party can simply assert that the pair has “irreconcilable differences” making the marriage unsustainable.

Only one spouse or domestic partner needs to allege irreconcilable differences to have a marriage dissolved as California doesn’t require both parties to agree that differences are irreconcilable.

However, to obtain a legal separation based on this ground, both spouses or domestic partners must consent or one party must not appear in the action. This gives the responding party the power to prevent the legal separation.

A court is able to make a wide range of orders in both divorce and legal separation proceedings. If the appropriate jurisdictional requirements are met, a judge can issue the following types of enforceable orders:

  • Child custody and visitation: California courts will assign physical custody and legal decision-making custody to either one or both parents. In some cases, a parent may only be granted visitation rights.
  • Child support: All parents are responsible for the financial well-being of their children. A court will weigh a variety of factors when determining who owes what for child support.
  • Spousal support: In some cases, a judge will decide that a spouse or domestic partner merits financial support for a defined or indefinite amount of time. California law sets forth various factors a court will consider when granting spousal support.
  • Restraining orders: A party may request a domestic violence restraining order to ensure their safety and peace. A court can also grant restraining orders regarding money or property.
  • Property division: The default property division laws in California support community property arrangements. This means that all assets and debts that were acquired during the marriage are usually split equally between the spouses or domestic partners. Couples can form a prenuptial agreement to contract around these laws.
  • Restoration of a former name: In a divorce, a party is entitled to a restoration of their former name on request. However, this is not available in legal separation proceedings.
  • Attorney fees and costs: A court may order one spouse or domestic partner to pay the other a reasonable amount of money for attorney fees and costs. This is to ensure that each party has access to legal representation to be able to preserve their rights.

Getting started with a divorce or legal separation can be challenging. As the process moves along, it is essential to have a knowledgeable, experienced attorney at your side. Hann Law Firm is here to guide you during this difficult time. At Hann Law Firm, we understand the struggle. We will do everything we can to make these circumstances as streamlined and pain-free as possible. Whatever that looks like in your particular case – a trial, mediation, or other informal means – our goal is always your well-being and best interests. Contact us today to learn more about or expert family law services.

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