Difference Between Legal Separation and Divorce

Divorce Terminates Your Marital Status Completely

The dissolution of marriage or "divorce" is a final and complete way for a couple to put end to their relationship. Essentially the procedure for legal separation and divorce are the same. The court will determine child support, custody and visitation, and property division. However, in a legal separation the court will not terminate your marital status.

Legal Separation Does Not End Your Marriage

With a legal separation, you will still be married, but will have property divided, support orders and even custody and visitation orders. So procedurally there is not much difference between legal separation and divorce. However, if the legal separation goes to judgment, then you will have to file a new case for divorce and pay the first appearance fee again.

Legal separation is also different than a California divorce because:

  • A legal separation will not change your marital status
  • You will not be able to remarry while you are legally separated
  • There is not a regional requirement, meaning that you can file for a legal separation no matter how long you have resided in California (Divorces in California require that you live in the state for a minimum of six months)
  • Legal separations take effect immediately, whereas a divorce will take six months or longer

Reasons for Choosing Legal Separation Instead of Divorce

  • The most common reason to choose a legal separation is the parties may be able to maintain a company sponsored health insurance policy if they remain married
  • To uphold religious beliefs
  • To retain tax or military benefits
  • To wait until they meet the residency requirement of living in the county for three months and the state of California for at least six months

However, if one parties files for legal separation and the other files for divorce, the case will proceed as a divorce unless there is an agreement otherwise.

Please contact the Law Offices of H. William Edgar to discuss the difference between legal separation and divorce.