Legal Separation vs Divorce: Choosing a Method of Separation That Works Best For You | CA Family Law
Updated: Mar 24
In California, Legal Separation allows spouses that live separately and are no longer together to divide assets and debts, determine child custody, child support, and spousal support, but still remain legally married. After a legal separation, the parties are not allowed to legally remarry.
Divorce allows spouses to legally terminate their marriage, and also allows spouses to divide assets and debts, determine child custody, child support, and spousal support. After a divorce, the parties are allowed to legally remarry.
While both have some similar effects, each respective separation process has its differences.
Choosing Legal Separation Over Divorce
Because legal separation does not legally terminate the marriage, some spouses opt to go this route rather than a divorce for a multitude of reasons, including:
Religious Reasons: Some couples may have religious or personal beliefs that prohibit divorce, but they still want to live separately and address issues such as property division, child custody, and support.
Financial Benefits: Couples may choose legal separation over divorce because they can still file joint tax returns and receive certain financial benefits that come with being married.
Health Insurance: Remaining legally married may allow a reliant spouse to remain on the others health insurance plan so that they may continue to receive coverage.
Trial Separation: Some couples choose legal separation to see if they can work through their differences and repair their marriage before proceeding with divorce.
Residency Requirements: In some cases, the parties may not meet the residency requirements for divorce in California, which is six months living in the state and three months living in the county where the divorce will be filed.
While it appears that there are some legal and financial benefits, it is important to note that legal separation can have some of the same legal and financial consequences as divorce.
Possible Downsides of Legal Separation
While legal separation can be a better option for some spouses, there are also some potential downsides to consider, including:
No Option to Remarry: Possibly the most significant downside of legal separation is that the parties remain legally married, meaning that they will not be able to remarry.
Lack of Finality: Unlike divorce, a legal separation does not provide a final resolution to the marriage, which may leave feelings of uncertainty about the future.
Possible Tax Consequences: Legal separation could possibly have positive tax benefits, but it may also have negative tax consequences as well.
How Divorce Differs from Legal Separation
The main difference between legal separation and divorce is a divorce legally terminates the marriage. This option allows the parties to address issues of property division, child custody, and support, and allows the parties the option to remarry.
Divorce allows the parties to have more finality than a legal separation because legally terminating the marriage may provide a sense of closure and allow both parties to move on with their lives, start new relationships with other people, and build new lives altogether.
Choosing What is Best For You
It is important to note that legal separation and divorce can both have significant legal and financial consequences, so it is important to speak with a qualified attorney if you are considering either option. The attorneys at Harris & McKeown Law Firm have over 10 years of experience in assisting clients with their family law needs.
If you are located in Orange County or its surrounding areas and you need advice on how to proceed, schedule a consultation appointment online or by calling (949) 297-6529.
THIS INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. EVERY CASE IS DIFFERENT AND THIS GUIDE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. THIS ARTICLE DOES NOT CREATE AN ATTORNEY CLIENT RELATIONSHIP BETWEEN THE READER AND ITS AUTHOR. IF YOU HAVE LEGAL QUESTIONS, CONSULT WITH A FAMILY LAW ATTORNEY.