Legal Separation Versus Divorce in California: What's the Difference?

Understanding Legal Separation in California

Legal separation is an alternative to divorce that allows couples to live separately while remaining legally married. In California, legal separation addresses many of the same issues as divorce, such as property division, child custody, and support arrangements. However, it does not terminate the marriage. This means that legally separated spouses cannot remarry unless they obtain a divorce. Legal separation can be a strategic choice for those who have religious or moral objections to divorce, need to maintain certain marital benefits (like health insurance), or are unsure about ending their marriage permanently.

The Divorce Process in California

Divorce, known legally as 'dissolution of marriage,' is the process that legally ends a marriage. Through divorce, spouses become single and are free to remarry. The divorce process involves settling matters such as asset division, spousal support (alimony), child custody, and visitation. California is a 'no-fault' divorce state, which means that the spouse filing for divorce does not need to prove wrongdoing by the other party.

Comparing Legal Separation and Divorce

Both legal separation and divorce require similar paperwork and go through a comparable legal process. This includes filing a petition with the court, serving papers on the other spouse, and negotiating settlements for marital issues. However, there are critical differences:

Historical Context: Legal Separation as Precursor to No-Fault Divorce

Historically, legal separation was often used as a precursor to divorce before no-fault divorce laws were enacted. For example, couples would live separately under a legal separation agreement while satisfying residency requirements or establishing grounds for a later fault-based divorce. With the advent of no-fault divorce laws in California in 1969—a first in the United States—legal separation's role evolved into its current form as an alternative to divorce rather than a stepping stone.

Making the Choice: Which Is Right for You?

The decision between legal separation and divorce is highly personal and may depend on financial considerations, emotional readiness, or family dynamics. It's essential to consult with an attorney who can provide guidance based on your unique circumstances.