Often, our clients ask about the difference between divorce and legal separation. The essential difference is that divorce is a final action, but a legal separation is not. In a separation, the parties remain married.
This begs the question: Why obtain a separation if you are still married? There are several reasons that legal separation may be an attractive option, including more beneficial residency requirements, the possible retention of certain benefits, and its immediate effect.
One reason a person may wish to pursue a legal separation rather than a divorce is because of the restrictive residency requirements placed on divorce. California law requires that, before a divorce petition may be filed, at least one of the parties must have lived in the state for at least six months; in addition, the person filing the petition must have lived in the county of filing for at least three months.
There are no state or county residency prerequisites for a legal separation. Therefore, a person who wishes to take immediate action may file for a legal separation, then amend the petition to request a divorce after the residency requirements were met. This option would be particularly helpful for someone who wants to obtain quick court rulings on matters such as property division; child, spousal, or domestic partner support; or child visitation. These things may all be adjudicated in a legal separation proceeding, just as they may in an action for a divorce.
Legal separation may also be a valuable option because it sometimes allows the parties to retain benefits that they might lose in a divorce. Some examples of these of benefits are as follows:
- Allowing the parties to stay within religious restrictions against divorce;
- Allowing the parties to keep health care or other insurance coverage that would be lost due to a divorce;
- Permitting one of the parties to retain immigration status; and
- Enabling the parties to obtain the requisite 10 years of marriage to qualify for Social Security spousal survivor benefits.
Legal separation also has some common-sense advantage for those who are not sure they wish to pursue the finality of a judgment of divorce. That is because legal separations can allow the parties to separate on a trial basis, giving them both the ability to see how they will do financially and emotionally before pursuing a legal end to their marriage.
The financial and other matters involved in legal separations and divorces can be very complex. For example, whether insurance coverage may be lost due to divorce or separation must be determined in each individual case. For this reason, it is critical to consult with an experienced family lawyer who can explain the potential impact of each avenue before a decision is made.
Judy L. Burger pairs her extensive family law experience with compassion and respect. If you would like more information about how California law would impact your situation, please contact her online or call (415) 293-8314.
A putative marriage is one where the couple intended to enter into a valid marriage, but for one reason or another, the marriage is legally void in fact. There may have been a legal barrier to marriage, such as one of the parties was already married to someone else, or unbeknownst to the couple, the official who performed the marriage ceremony was not legally authorized to do so.
Sections 2250 – 2255 of the California Family Code explains a putative spouse’s rights when the couple breaks up. Rather than a petition for divorce, one or both parties must file a petition entitled “In re the marriage of ____ and ____” and the petition must state that it is a petition for a judgment of nullity of the marriage.
Once the marriage is found void or voidable, then the Court may proceed to divide property, award spousal support, and award custody of the children in a manner substantially similar to standard divorce proceedings as though the couple were legally married.
At the 
Getting divorced is seldom a walk in the park. Nobody gets married planning to go through a divorce sometime down the road. But, life happens and people sometimes change or grow in different directions. As family law attorneys, we see the effects of such changes every day. The most common phrase we hear is “He (or she) is not the same person I married.”
If divorce seems to be looming on the horizon, this is not the time to ignore the problem and hope it goes away. Face the issue head on and start planning to ensure the best outcome possible.
It goes without saying that choosing the right divorce lawyer is the first critical step in a divorce. A consultation does not necessarily mean a commitment, but a qualified, experienced California divorce lawyer can answer questions you didn’t even know to ask. A consultation is well worth the cost if it can save you thousands of dollars in costly mistakes.
For those who plan to seek custody of the children, it is not too early to start a journal. Chronologically record specific events that relate to your spouse’s interaction and relationship with the children. Your attorney can help you distinguish which events are more important than others.
Finally, put your accountant’s hat on and list all of the assets and debts you believe should (or shouldn’t) be included in the marital pie.
Instead of thinking of divorce as an ending, think of it as a beginning. You will have a chance to spend time thinking, planning, and dreaming. Better relationships can be built with your children and extended family. You will have a fresh opportunity to become comfortable with who you are rather than what someone else wants you to be. And when you’re ready, you will have a chance to start over.
