Legal Separation v. Divorce


When a married couple no longer wants to be together, there are options to create space and separate from one another.  One option is through legal separation; the other is by way of divorce.

What is legal separation?  Legal separation is a way of living apart from your spouse, while maintaining your marital status – although you are legally separated, you are not free to remarry. Legally separating from your spouse helps protect spouses from the uncertainty of filing for a divorce, while figuring if the marriage is salvageable.  Although separated, the spouses sometimes still retain health insurance through the insured spouse(check with your insurance company), file their taxes jointly, and may inherit from the other spouse. 

How is a legal separation different from a divorce?  It is actually very similar, in every respect except at the end of the process you are still married.  You divide assets and debts,and even get child custody and support orders. But when it’s all said and done your legal “status” hasn’t changed from“married” to “single.”  This can be important with regards to any future marriage and/or certain tax filings.

A divorce on the other hand, is a formal ending of a marriage.  This means that after you file for a divorce and ultimately a judgment is entered, you are no longer married to the other person (and are free to re-marry).  This also means that once you go through the divorce process, there is no going back. Because you are no longer married, you will most likely not be able to retain health insurance through your ex-spouse, file taxes jointly, nor may you gain certain inheritances from the other spouse (absent certain testamentary documents).

California is a “no-fault”state.  This means that you do not haveto file for legal separation prior to the filing of a divorce.  It also means that certain conduct, such as extramarital relationships, are irrelevant to the divorce process.  There are however, residency requirements for the filing of a divorce – you must have lived in the state for six months before filing for a divorce, and a particular county for three months.  If time is of the essence for any reason, the filing of legal separation can be accomplished immediately since there is no statutory residency requirement for a judgment of legal separation.

 Whether you choose to file for legal separation or a divorce, it is best to know which option suits you best.  If you are unsure, it is advisable to seek an experienced family law attorney so that you may discuss your concerns and become more informed about the differences between filing for legal separation as opposed to a divorce. 

 Authored by IRWIN & IRWIN. IRWIN & IRWIN Family Law is located in Fullerton, California.  We provide a full suite of family law services from divorce litigation, divorce mediation, child custody issues, domestic violence restraining orders and representing minors in court.  “Every situation is different, and some come with very complex financial issues.  Our legal team is hereto support you during a very troubling time and prepare you for court, or to atleast help negotiate or mediate the issues out to establish an equitable legal resolution,” says Kelly Irwin, Senior Litigator at the firm.