What’s the Difference Between Legal Separation and Divorce

Separation or Divorce: Make an Informed Decision

Curious about the options when ending a marriage in California? Choosing between legal separation and divorce can be confusing. Understanding these choices helps you make the best decision for your future. The difference between legal separation and divorce in California is crucial for couples. 

Legal separation allows you to live apart without ending the marriage. Divorce, however, completely ends the marriage, giving you the freedom to remarry. Both choices have their own sets of rules, rights, and responsibilities. 

Knowing which path suits your needs can save you time, stress, and money. Let’s explore what makes them different and find out which option is right for you.

Quick Summary

Below is an overview of the key points of this blog article.

  • Legal separation sets the rights and duties of a couple living apart but still married. It allows them to get court help with issues like custody, support, and money, similar to divorce.
  • You choose a legal reason for your separation, like irreconcilable differences, and file a petition for separation or divorce. Submit forms to the county court with details about your properties and children, request custody orders, and pay a filing fee.
  • Divorce legally ends a marriage. After a divorce, the spouses are no longer legally married to each other, making it the final way to end a marriage.
  • In a divorce, one spouse starts by filing a petition, which the other spouse must respond to within 30 days. They can request a hearing for temporary custody or support, and then both spouses share information and try to settle things together, but if they can’t agree, it may go to trial. Once they both sign an agreement, the divorce is finalized with a court order.
  • Legal separation and divorce are similar but differ in important legal aspects like marital status, tax implications, and Social Security benefits. They also vary in treatment of retirement accounts, beneficiary designations, and complications if reconciliation occurs.
  • Some couples prefer divorce over legal separation in California for a few reasons. This includes no financial benefit to separation, believing the marriage will ultimately end in divorce anyway, and not wanting to make decisions for their partner if they become unable to.
  • In California, some people prefer legal separation over divorce for a few reasons. They might want to keep health insurance, follow religious beliefs, maintain tax or military benefits, or wait until they meet residency requirements for divorce.

What is Legal Separation?

Legal separation decides what rights and duties a couple has when they choose to live apart. While legally separated, they’re still married and can’t marry others. But they can get help from the court for things like custody, support, or money matters, similar to what happens in a divorce.

What is the Process of Legal Separation?

Legal separation, while similar to divorce, allows you to remain married on paper but live separate lives. Here’s a quick look:

  1. You choose the legal reason for your separation, like irreconcilable differences or incurable insanity.
  2. File a petition that lets you choose either separation or divorce.
  3. Submit forms to the local county court, giving details about your properties and children. This is also when you ask the court for child custody orders.
  4. If you have young children, file a form to establish jurisdiction over them if one parent lives in another state.
  5. Pay a filing fee.

What is Divorce?

Divorce is when a marriage legally ends. Unlike legal separation where couples are still married, divorce makes it official that the marriage is over. Divorce is a clearer and more final way to end a marriage. After a divorce, the spouses are no longer legally married to each other.

What is the Divorce Process?

Divorce legally ends your marriage. It can be a complex process, but here’s a simplified breakdown:

  1. A divorce petition is filed and given to the other spouse.
  2. The other spouse must respond to the petition within 30 days.
  3. One spouse can ask for a hearing to set temporary child custody or spousal support.
  4. Both spouses share information and documents related to their divorce, like income and expenses.
  5. Both spouses and their attorneys meet to discuss and settle their cases. They will sign a Marital Settlement Agreement, which includes all the terms they agreed on.
  6. If one spouse disagrees with the agreement, a trial will happen.
  7. After both spouses sign the Agreement, a judgment of dissolution of marriage is prepared with the court orders.

What’s the Difference Between Legal Separation and Divorce?

While divorce and legal separation share similarities, they also have distinct legal differences. These differences can have significant legal effects. Here are some of the contrasts:

  • Dissolution of marriage judgments ends the marriage, while legal separation judgments keep the parties legally married.
  • There are tax implications. For example, legally separated couples can file joint taxes, but may also be liable for each other’s unpaid taxes.
  • Social Security Benefits. Divorced parties may get “derivative” benefits from the other’s Social Security if married for 10+ years. Legal separation may require research to understand the benefits.
  • Death Benefits. Legally separated parties may have claims to each other’s assets after death if their agreement doesn’t waive this.
  • Retirement Accounts. Issues can arise with different types of retirement accounts (e.g., 401(k), IRA) regarding tax treatment and beneficiary designations during legal separation.
  • Beneficiaries. Divorce lets parties change beneficiaries on life insurance, retirement, and financial accounts. Legal separation might require waiving interest, but the designation might not be changed.
  • Reconciliation. If legally separated parties get back together, their legal separation judgment may cause complications.

Why Should I Choose Divorce Instead of Legal Separation in California?

There are a few reasons why couples choose to get a divorce instead of legally separating. These reasons can include:

  • There is no financial benefit to legal separation.
  • You think your marriage will end in divorce even if you separate.
  • You don’t want to make financial or medical decisions for your partner if they can’t.

While divorce might not offer as many benefits as separation, it’s crucial to know that divorced couples can still get married again. Even though you’ll need to wait until your divorce is finished before getting a marriage license, and even though the legal steps for remarrying can be more complex, it’s still doable. 

Despite these conditions, some couples choose legal separation instead of going through with a divorce.

Why Should I Choose Legal Separation Instead of Divorce in California?

The most common reasons to choose a legal separation are:

  • The parties may keep company-sponsored health insurance if they stay married.
  • To follow religious beliefs.
  • To keep tax or military benefits.
  • To wait until they meet the residency requirement of living in the county for three months and in California for at least six months.

Lots of couples who decide to legally separate often end up getting back together. If they do, they can simply cancel the separation paperwork and continue with their lives as before. But if one person asks for a legal separation and the other wants a divorce, it will likely go through as a divorce unless they agree on something different.

Trusted Legal Support for Your Family Law Journey

Choosing between being legally separated or divorced can be a tough choice. But don’t worry, you don’t have to do it alone. Embolden Law PC is here to provide the support and legal guidance you need during this challenging time. Our Santa Rosa CA family law attorney will guide you through each step, ensuring you understand your rights and options. 

With our dedicated service, you can feel confident in making the best decision for your future. Trust Embolden Law PC to help you find the right path forward. Schedule a free phone call with our attorneys and let us support you every step of the way. We can also represent you in Child Custody and Child Support.

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