California Legal Separation vs Divorce – What’s the Difference?

California Legal Separation vs Divorce – What’s the Difference?

April 04, 2023

California couples looking to divorce or separate are likely already going through plenty of emotional and financial troubles. The couple may wish to separate but don’t know whether legal separation vs divorce would be the right course of action. Couples who divorce may regret their decision or feel they should’ve separated. It’s imperative for couples looking to separate or divorce to understand the differences between the two.

The main difference between legal separation and divorce in California is that legal separation allows couples to live separately while remaining legally married, while divorce terminates the marriage and allows the couple to remarry. However, no couple is the same, and everyone has their own set of circumstances. Some couples may be financially more inclined to separate, though they may end up divorcing later anyway.

No matter the situation, we’ve compiled some differences between the two so you can make the most fitting choice if your situation comes to that.

California Legal Separation vs Divorce

Divorce Terminates Your Marital Status Completely

The dissolution of marriage or “divorce” is a final and complete way for a couple to put an end to their relationship. The process for divorce includes two different parts. First, a divorce includes a negotiation period. During this phase, a family lawyer is hired to determine child support, property division, and more. The second part includes the actual divorce process, where the couple obtains a divorce decree in court. This officially marks your marriage has ended.

Essentially, the procedure for legal separation and divorce are the same. The court will determine child support, custody and visitation, and property division, and there is legal paperwork to fill out for separation as well. However, in a legal separation, the court will not terminate your marital status, whereas if you divorce, your marital status will be considered over.

To divorce in California, you must meet a few specific requirements. For example, one spouse must have lived in California for at least six months, as well as the county where you’re filing for divorce for three months. Also, there is a six-month waiting period after you file the divorce, and when it’s completed, the judge can finalize the divorce.

It’s worth mentioning that California is a no-fault state, meaning you do not have to submit a reason for divorcing. Fault is not determined when determining certain rulings like property division.

Reasons for Choosing Divorce Instead of Legal Separation in California

There are a few reasons couples opt to divorce instead of legally separate. These reasons can include:

  • There is no financial advantage to legally separating
  • You believe your marriage would end in divorce even if you separated
  • You don’t want to make any financial or medical decisions for your partner if they’re unable to

While divorce may not have nearly as many advantages as separation, it’s important to remember that divorced couples can still remarry. While you’ll have to wait for your divorce to be fully finalized before submitting a marriage license, and though the legal process may be more complicated for remarrying, this is entirely possible. Despite the aforementioned conditions, some couples instead opt for legal separation rather than finalizing a divorce.

Legal Separation Does Not End Your Marriage

Unlike divorce, legal separation does not mean you’re no longer married. While the process for filing a separation order is very similar to the divorce process, the end result is much different. 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 from 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

One of the most notable benefits of legal separation over divorce is that if you and your spouse do choose to divorce after being separated, your petition can be easily amended with little or no additional legal measures to take. On the other hand, couples can withdraw their separation agreement just as easily should the couple no longer wish to separate or divorce.

Reasons For Choosing Legal Separation Instead of Divorce In California

The most common reasons to choose a legal separation are:

  • 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

Many couples who end up legally separating are more likely to reconcile. If a couple indeed reconciles, they can easily withdraw the separation documents and move forward with their lives without hassle. However, if one party files for legal separation and the other files for divorce, the case will proceed as a divorce unless there is an agreement otherwise.


Q: Why Would You Get a Legal Separation Instead of a Divorce in California?

A: Some couples may not know if divorce is the right option and instead opt to protect themselves financially. If they do end up divorcing, they can make the necessary changes at the right time. Also, if you want to assist your spouse and give them health insurance or another similar benefit, a separation will allow you to do this, unlike divorce. Also, some couples may wait until they reach Social Security benefits before divorcing.

Q: What Is the Difference Between a Separation Agreement and a Divorce in California?

A: Divorce is a finalized agreement that terminates a marriage, whereas a separation agreement means the couple is still married but not legally living together. A divorce also cuts off all benefits between spouses, such as health insurance, while a separation allows the other spouse to remain on their health insurance or similar benefit program. Divorce also generally has more legal criteria couples must pass, whereas separation is much easier to qualify and apply for.

Q: What Are the Disadvantages of Separation Rather than Divorce?

A: When couples divorce, there are a few financial benefits they may be able to obtain. For example, divorced couples have more control over their finances after the divorce is finalized. Divorced couples with kids can control their finances so their kids have college funds for the future. For separated couples, financial control may be a concern for the couple, as well as how to fairly split their wealth.

Q: Am I Required to Hire a Lawyer for a Divorce or Separation Case?

A: You aren’t required to hire legal representation for your divorce or separation case, though attempting to navigate California’s legal system alone can be intimidating. Hiring a lawyer may cost a fair amount of money at the moment, but you may secure additional finances that can last much longer. Also, a lawyer’s knowledge and experience are essential in understanding and protecting your rights. While not mandatory, it’s crucial you consider hiring a lawyer to assist you.

Contact Our Team Today

Divorce or separation is challenging for any couple. Breaking off your agreement to commit to each other is no easy task, especially if the two of you have children you want to keep protected. We know how complex divorce laws in California can be, but you don’t have to navigate this challenging process by yourself. Our team at the Edgar & Dow is prepared to address your concerns and determine the most optimal path forward.

Please contact the Edgar & Dow to discuss the difference between legal separation and divorce. We’ll gladly assist you with any divorce or separation matters, as well as provide legal advice at any step of the process.


The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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