Legal Separation vs. Divorce in California

By Bryan Driscoll, J.D.

Legal Separation vs. Divorce in California

By Bryan Driscoll, J.D.

Legal separation does not end your marriage like divorce does. But both legal separation and divorce in California require a formal agreement. It is not enough to live apart from one another. You must take action to have a legal separation or divorce in California.Suited man showing a woman and man how to sign documents on a clipboard

It is a personal decision whether you and your spouse want to legally separate and remain married or you want to end the marriage. In California, there is a six-month delay between the time you file for divorce and when it is legal. But if you're not sure you want a divorce, you can start the process of legal separation. If you decide later to start the divorce proceedings, the six-month clock starts with your legal separation.

Similarities

While legal separation and divorce are different and complicated legal actions, there are similarities between them. The biggest similarity is the process. Filing for each in California is nearly identical and proceeds as follows.

  1. You or your spouse files a petition. California is a no-fault state. This means you do not have to provide a reason for your legal separation or divorce with your petition.
  2. A decision must be made on the division of assets. Once the court has accepted your petition, you need to divide your assets. You need to determine who will keep and live in the marital home. If you have children, you also need to decide where the children will live and what child support will be owed.
  3. You can enter into a settlement agreement. If you and your spouse agree on most or all decisions for how to divide your assets, you can enter into a settlement agreement. This is a preferred route. Otherwise, a court will decide for you.

Differences

There are both legal and personal differences between a legal separation and divorce in California. You and your spouse need to consider each carefully.

  1. Legal separation requires consent. Divorce does not. When you file for a legal separation, you must serve the petition on your spouse. If they do not respond, if they agree to the petition without objection, or if they file a response with consent, the legal separation can move forward. Without consent from your spouse, you will have to file for divorce instead.
  2. California law requires that you have lived in the state for at least six months before filing for divorce. There is no such residency requirement for legal separation. If you have not lived in California for at least six months, you can file for legal separation now and convert the proceeding to a divorce once you meet the residency requirement. The six-month waiting period for a divorce starts when you file for legal separation so this is a way to expedite that process.
  3. Legal separation does not end your marriage. Divorce does. You may have personal reasons to choose divorce over legal separation. Maybe you want to get remarried. You need to get divorced first. But maybe you and your spouse want to continue sharing tax or healthcare benefits. Then you should choose legal separation.

Regardless of your reasons for choosing to split with your spouse, California provides you with options. Make sure you understand the laws in your state and are prepared to make tough decisions.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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