What is the Difference between Legal Separation and Divorce in California?
There is a misperception held by many people that obtaining a legal separation in California is significantly easier than obtaining a divorce, because it is less final than a divorce. In reality, there are more similarities than differences between the two types of proceedings.
The Similarities1) Property division: Assets and liabilities are divided in a legal separation just as they are in a divorce. And, just like in a divorce, if the spouses are not able to come to an agreement on their own or through arbitration or mediation, the court may become involved, which would require hearings and witness testimony. The court may also be asked to decide whether spousal support is appropriate.
2) Custody and parenting arrangements: Just as in a divorce, decisions regarding parenting arrangements and physical/legal custody of minor children must be determined in a legal separation.
3) Legal formalities: Both legal separation and divorce proceedings must follow certain legal formalities, including filling out forms and paying court filing fees. Couples who assume that a legal separation is cheaper than a divorce are usually disappointed to learn that court fees are exactly the same for either type of proceeding. Indeed, the forms used and filed with the courts are also the same; couples filing for legal separation will just check a different box on the form to commence the case. Both parties must agree to proceed with a legal separation and not a divorce.
The Differences1) Marriage is still legal after separation: A legal separation does nothing to change marital status, so even after going through the process, the couple is still married to one another. This means that neither spouse will be able to get remarried or enter into a domestic partnership with anyone else. This is different from a divorce where, after the divorce decree has been issued, the former spouses are free to remarry.
2) Residency requirements: To get divorced in California, at least one spouse must have lived in the state for at least six months, and the couple must have lived in the county where filing for divorce for at least three months. There is not a residency requirement to obtain a legal separation.
3) Timing: Legal separations may be faster than divorce proceedings, however if the couple is unable to determine issues such as property division, custody arrangements or spousal support on their own, these proceedings can extend the process for a legal separation.
Who may want to consider a legal separation instead of a divorce?1) Not ready to terminate the marriage: Sometimes, couples think they want to end the marriage, but aren't 100% sure. A legal separation is a way to test the waters, without officially ending the marriage.
2) Unable to meet the residency requirement for a divorce: If a couple is not able to meet the six months in-state/three months in-county residency requirement for a divorce but still want to end the marriage, they may opt for a legal separation right away, instead of waiting out the rest of the required time period. Then, after meeting the residency requirements, the couple can file to amend the petition to become divorced.
3) Religious beliefs: In some religions, divorce is not allowed, so couples opt for legal separation instead.
4) Benefits: Couples may wish to remain legally married after they separate, in order to continue receiving certain benefits they would lose in a divorce.
ConclusionIt is important to understand that if a couple obtains a Judgment of Legal Separation and later wants to get divorced, they will need to start the entire process again, by filing new paperwork for a divorce and paying court fees again. Of course, some of the issues may have been resolved in the legal separation so the process for divorce may be easier.