What is Legal Separation vs a Divorce?

One of the most common questions I am asked during a consultation is if a person should consider legal separation over divorce, because they don’t understand the differences between the two. Another common scenario is that the clients have heard the term “date of separation” and believe it equates to a “legal separation.”

So, first, to clear up that confusion, a “Legal Separation” is an official type of case you file with the State of California. The paperwork involved is the same as for a “Dissolution” (also known as a divorce) case. However, unlike a “Dissolution,” a “Legal Separation” does not result in the end of a marriage. The “date of separation” is simply the date that you (or your spouse) decided that the marriage is beyond repair and wish to pursue either a “Dissolution” or “Legal Separation”.

Next, I’ll explain the differences between a “Dissolution” and “Legal Separation” so you can decide which is appropriate for your circumstances. In California, a legal separation divides your assets/debts and orders can be made for custody, visitation and support; however, at the end of the case, when a Judgment is entered, you remain married. “Dissolution” does all the same things, but the Judgment ends the marriage. In another case you can start a case with “Legal Separation,” but both parties must agree to it, or the case will be converted to a “Dissolution.” A “Legal Separation” can be converted to a “Dissolution” at any time before the entry of Judgment. If a “Legal Separation” Judgment is entered and you then want to divorce, you have to file a new Petition for Dissolution, pay the filing fees, and wait the required six months until you are officially divorced.

The key differences between “Legal Separation” and “Dissolution” are:

As already stated, in a “Legal Separation,” you remain married at the end, in a “Dissolution” you do not.

1. There are no residency requirements to file a “Legal Separation” in California, but to qualify for a “Dissolution” here, one spouse must have lived in California for at least six months prior to filing and in the county where the divorce is filed for at least three months prior to filing there.

2. Depending on your insurance carrier, after a Judgment of “Legal Separation” you may be able to maintain your spouse on your health insurance, which can be essential for people undergoing certain medical care and treatments, whereas once the “Dissolution” is finalized, your insurance company will terminate coverage for your spouse.

3. After a Judgment of “Legal Separation”, you can still share tax benefits and file taxes jointly with your spouse, whereas in a “Dissolution,” once a Judgment is entered, you can no longer enjoy the benefits of filing taxes jointly.

Why Do Some People Choose a Legal Separation?

People often ask why it is advantageous to choose one of the options over the other. Primarily, people choose “Legal Separation” if they do not meet the residence requirements to file a “Dissolution” in California initially, but plan to convert the case to a “Dissolution” once they are eligible to. Some have personal or religious beliefs that discourage divorce, or simply “staying together for the kids” without actually having their finances together any longer. One spouse also may wish to divide their finances to protect certain assets from creditors due to the other spouse’s financial decisions being made. Finally, one spouse may rely on the other’s health insurance or benefits. Typically, “Dissolution” is chosen when there are irreconcilable differences that cannot be overcome, and the person wishes to end the marriage altogether and may even already have plans to remarry, as you cannot remarry if you have only been legally separated.

Both “Legal Separation and “Dissolution” are options that affect your household’s finances, your and your spouse’s emotional well-being, and have a significant impact on your family. If you are considering either option, it is best to consult with an experienced Family Law attorney to weigh the pros and cons of your options and better understand the processes involved.

Inglis Family Law Firm offers a FREE half-hour consultation regarding these issues.

If you are interested in discussing “Legal Separation” or “Dissolution”, please contact our office at 661-200-3845 and schedule a consultation today.