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Legal Separation vs. Divorce


Whether you and your partner choose to divorce or separate, you will need to settle on many of the same issues, including but not limited to:

  • The division of assets and debts
  • Familial support (i.e. alimony or child support)
  • Child custody

However, while the court agreements for both cover many of the same issues, legal separation and divorce are distinctively different as:

  • A divorce permanently ends your marriage, and a legal separation does not. With a legal separation, you remain married and are ineligible for remarriage unless you file for divorce, or your partner dies.
  • A legal separation requires both parties’ consent, while a divorce can proceed regardless of one party’s objection.
  • A legal separation goes into effect immediately, while a divorce is subject to a 6-month waiting period.
  • There is no residency requirement for a legal separation, while those seeking a divorce must have been a California resident for 6 months before filing.

Why Would You Legally Separate Instead of Divorce?

It is important to note that separation is not required before getting divorced. However, many couples decide to legally separate instead of divorce because of their:

  • Religious beliefs. Some religions only allow for divorces in specific circumstances, which is why some couples instead opt to legally separate.
  • Military spouse benefits. You can retain your military ID card and benefits even if you and your spouse separate.
  • Partner’s healthcare plan. Because of a chronic illness or other health concerns, some couples opt to stay married but separate so that they can benefit from their partner’s healthcare plan. It is important to note that these benefits are not guaranteed, and you should review the terms of your specific plan to ensure coverage is still available if you separate.
  • Plans to still file taxes jointly. You cannot file jointly if you are divorced, and many couples financially benefit from filing their taxes jointly. However, you should speak with an accountant or tax professional as tax laws are complex and there can be consequences to filing incorrectly.
  • Inability to meet the divorce residency requirement. If neither party has lived in California for 6 months but you would like to begin the process, you may consider legal separation. This will expedite the divorce process once you are eligible to file as you already hammered out the details.
  • Desire to obtain support. A legal separation allows couples to have court-ordered agreements that outline their obligations for alimony or child support, which can benefit separated couples as the outlined terms are legally binding and enforceable.

How to File for Divorce or Separation

The filing process for divorce and separation is very similar and involves:

  • Submitting your petition at your local court
  • Paying the filing fee
  • Serving the other party (so that they can respond)
  • Attending a court hearing
  • Filing the final disclosures

Before filing for divorce or separation, you may want to consider preparing for the upcoming process. To prepare, you should answer the following questions:

  • What do you want? As we mentioned, you will need to make a lot of decisions whether you decide to get divorced or separate. You should consider what outcomes and solutions for custody, the division of property, alimony, etc., so you can fight for your best interest. Most of these decisions will impact your future stability and way of life.
  • Do you have a list of your marital and separate property? California is a community property state, which means the marital property will be divided equally. Having a list of all your debts, assets, and property can be helpful as you consider what you want.
  • Are you financially able to support yourself? You and your partner may now share expenses, but after your separation and divorce, you will have more financial obligations. Create a list of your expenses and income so that you can get an idea of whether you may need alimony and/or what new expenses you need to budget for.
  • Who can you lean on for support? Throughout this process, you will need a support network; getting divorced or separated is emotionally and mentally draining even in the most amicable circumstances.
  • How do you plan to tell your children? Getting divorced or separated can impact more than just the couple itself. Your family dynamics and routine will be changing, and you should discuss the upcoming changes with your children. If possible, you and your partner should try to have this discussion with your children together.
  • Do you have a reliable attorney? To put your mind at ease, you should retain an experienced attorney who can walk you through your separation or divorce. It never hurts to have someone in your corner.

Our attorneys at The Neshanian Law Firm, Inc would love to represent you in your separation or divorce case. Not only are we experienced in these matters but we are also known for our responsiveness, compassion, and dedication to our clients. Schedule a case consultation today by reaching out online or at (949) 577-7935.