California offers three options for couples wanting to part ways in a domestic partnership or marriage. Annulment, divorce and legal separation are all viable methods, but there’s a difference between separation and divorce that all couples need to consider before deciding which option is best for you.
Divorce is what most people think of when they want to legally end their marriage or domestic partnership.
Once finalized, your divorce allows you to remarry or enter another domestic partnership. Prior to your divorce being finalized, you’ll need to come to an agreement on child custody, visitation and support, property division and attorney fees.
Legal separation is another option for couples who might not want to divorce.
What is a Legal Separation?
California’s Family Code Section 2310 allows for legal separation when parties meet one of two requirements:
- Irreconcilable differences
- Permanent legal incapacity
Separations are more flexible than a divorce, although you can ask the court to make some of the same orders as you would in a divorce. You remain married, but the court may divide your:
- Property
- Debt
If you have children, the court can also decide on child custody arrangements and support. Lawyers may or may not be involved, but when they are, you can even have the court decide who will pay the fees.
Recapping, the main difference between separation and divorce, is that a separation does not end the domestic partnership or marriage. You’re legally separated and go through some of the similar processes to a divorce, but you cannot enter another marriage or domestic partnership.
Why Would Someone Want A Legal Separation Instead Of A Divorce?
Why not just get divorced if you’re dealing with the courts already? A few reasons:
Taxes
Since you’re not legally divorced, you can still file your taxes jointly. You may or may not benefit from joint filing, but it’s something to discuss with your CPA.
Health Insurance
Divorce usually terminates a person’s health insurance, but in cases where spouses are legally separated, the person can often remain on their ex’s insurance. You can separate for a multitude of reasons, but when you still care about a person and they may need medical care, legal separation can be extremely beneficial.
Residency Requirements
One key difference between separation and divorce relates to residency requirements. You cannot file for divorce in California unless one of the spouses have lived:
- In the state for six months
- In the county where you’re filing for three months immediately before filing
Legal separation has no residency requirement.. If you do not meet residency requirements yet, you can file for legal separation now and once residency requirements are met amend the petition and ask for a divorce.
For same-sex marriages entered into in California, a separation or a divorce may be obtained even if neither spouse is a resident of California if neither spouse lives in a jurisdiction that will dissolve the marriage.
Reconciliation
If there’s a chance that you may reconcile in the future, it’s often easier after a legal separation than a divorce.
Religious Reasons
Sometimes, spouses prefer legal separation because of religious reasons.
Legal separation and divorce both have pros and cons that couples should consider prior to choosing the best option for their relationship.
Pros and Cons of Legal Separation
Legal separation offers some advantages, but there are some drawbacks that must also be considered.
When choosing a legal separation:
- You and your spouse can live apart while remaining legally married, which can be advantageous for religious or financial reasons.
- You have the option to request the court to dismiss your request for legal separation if you and your partner reconcile before your judgment is entered.
- You may be able to maintain certain benefits connected to your marriage, such as health insurance or military benefits.
Additionally, any assets or property you acquire after the date of legal separation will be considered separate property, which can simplify things if you decide to divorce in the future.
While there are many advantages to legal separation, there are some potential issues that must be considered:
- You and your partner will still be legally married, which means you cannot remarry until you get divorced.
- Because you are still married, your partner’s debts and liabilities may still impact you, depending on the nature of the debt.
- Should you pass away while you are still legally separated, your partner may still have a right to part of your retirement savings or estate.
- You will need to file additional documents with the court if you later want to get divorced which may result in additional fees and costs to you.
There may also be other potential advantages and drawbacks that are unique to your situation. An experienced lawyer will help you understand the true implications of legal separation and whether this path can help you achieve your goals.
Pros and Cons of Divorce
Divorce also has its advantages, but there are some pros and cons that should be considered.
When choosing divorce:
- The marriage is terminated, along with any ability to acquire additional community property rights.
- You and your former spouse have the right to remarry once the divorce is finalized.
- Your ex’s liabilities and debts incurred after divorce will no longer impact you.
- Once finalized, the decision typically cannot be reversed.
- You will likely lose access to benefits you enjoyed during marriage, such as medical insurance.
How Can You Determine What Is Best For You And Your Family?
Although similar in many ways, there is still a difference between separation and divorce. The case structure and procedure for both resolutions are similar, but legal separation still results in you and your spouse remaining legally married.
Determining what is best for you and your family is a personal decision. Often, those who choose legal separation do so for religious or financial purposes. Or, they do so because they are not certain they want to divorce yet but want some protections provided by a legal separation.
Understanding the implications of both options can help you make an informed decision. For example:
- If you’re open to the possibility of remarrying in the future, divorce is your only viable option.
- Legal separation may not preserve all benefits that you shared as a married couple.
A lawyer can help you understand your options and explain the potential challenges or advantages of legal separation and divorce. Their knowledge and experience can help you make the right decision for your family.
Contact Wine Country Family Law, P.C. to Understand Your Options
Making the decision to end a relationship is never easy, regardless of whether it’s through legal separation or divorce.
The experienced and compassionate attorneys at Wine Country Family Law, P.C., will take the time to listen to you, explain your options and help you navigate whichever path is right for your family.
Contact us today to schedule a consultation with an experienced divorce and legal separation lawyer.
