Legal Separation vs. Divorce: What’s the Difference?

by | Jun 13, 2024 | Divorce

When a couple experiences trouble in their marriage, it may not be immediately clear to them if divorce is the right move. Nevertheless, couples may feel that separation is necessary in the meantime, whether to give them breathing space to chart a path forward or to work out the first step in formally dissolving their legal relationship. In California, couples who are not ready to divorce—or not eligible to file for divorce due to the state’s residency requirements—have an alternative. A legal separation can provide some of the legal and financial protections of divorce but without its finality.

To understand if a legal separation might be appropriate in a particular situation, it is essential to understand the key differences between the two. While a legal separation may have some benefits, it also leaves in place certain responsibilities and restrictions that can limit what each member of the couple can and can’t do in their daily lives. Before any petition is filed with the court, the potential consequences should be carefully considered. This blog will help you understand the differences and implications between a legal separation and divorce.


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The primary difference between legal separation and divorce in California is that legal separation does not permanently end a marriage. The biggest similarity is that a legal separation, like a divorce, allows a couple to put in place a legally binding agreement or court order that outlines their rights and responsibilities while they are living apart. This can include issues such as property division, child support, child custody and parenting time, and spousal support. Such an agreement can provide valuable legal protection from financial risk during a period a couple is living apart—for example, by limiting one spouse’s liability for debts incurred by their spouse after they have separated.  

Why might a couple choose to file for legal separation instead of divorcing? Some may be unwilling to divorce due to religious beliefs. Others may have financial reasons for staying legally married, such as to retain tax benefits or to potentially preserve access to a spouse’s health insurance. Still others may use legal separation as a test period to assess if their differences can be resolved.

A couple that wants to divorce may still opt to file for a legal separation first if they do not meet the residency requirements for divorce yet. Prior to filing for divorce in California, at least one of the spouses must have lived in California for at least six months and have lived in a county where the case is to be filed for at least three months. For legal separation, there’s no time requirement, and only one of the spouses must live in California. Obtaining a legal separation can allow the couple to get on with separating their finances and continue with their daily lives without delay, and the petition can later be amended to seek divorce once the residency requirements are met.

How is Filing for a Separation Different?

legal separation or divorce in California

In California, the process of filing for a separation or divorce starts with filing the exact same form, but with different boxes to be checked depending on if the couple is seeking legal separation or a dissolution of the marriage. The steps of sharing financial information, negotiating an agreement, and, if necessary, having a court hearing to rule on issues that the couple can’t agree on themselves, are also remarkably similar for either process. However, by law, a divorce can’t be finalized for at least six months after the petition is filed. There is no such waiting period for completing a legal separation—the timeline for obtaining a judgment of legal separation can be obtained much more quickly if the couple can come to an agreement on the terms.

Disadvantages of Separation Rather Than Divorce

legal separation or divorce in California

Although a legal separation can continue indefinitely in California, its disadvantages mean that in most cases, it only makes the most sense as a temporary solution when compared to the finality of divorce. Couples that are legally separated are still legally married. Neither is free to enter into another marriage or domestic partnership until they obtain a divorce. That legal marital status means that a separated spouse may still be considered next of kin responsible for making medical decisions if their spouse should become ill or incapacitated and that they retain their inheritance rights if their spouse passes away. Similarly, a couple that is legally separated rather than divorced is still considered married for tax purposes. This may provide a financial advantage if they can obtain more tax benefits by filing jointly, but it also limits each party’s options for how they file taxes and requires trust and cooperation to ensure that the couple’s tax obligations are fully met.

While nobody is required to hire a lawyer for a divorce or separation case in California, the legal issues involved make it advisable to consult a knowledgeable family law attorney, particularly when there are complex assets or shared children. They can help create a comprehensive separation agreement that provides a clear outline for any shared financial obligations and explicitly addresses issues like child custody, support, and inheritance. Moreover, an attorney can help ensure a separation will accomplish the goals the couple is hoping for; for example, a partner’s health insurance plan may have provisions making their legally separated spouse ineligible for coverage, defeating the purpose of staying married “on paper” to keep the whole family on the health plan. Obtaining timely legal assistance can help prevent such unexpected outcomes.

Expert Family Law Representation in Silicon Valley

Not every marriage that goes through a rocky period is destined to end in divorce. If you’re considering a legal separation to keep your options open while you ponder your next steps, the compassionate family law attorneys at Hoover Krepelka LLP can help. Our experience is the guide you need to know your rights and protect your best interests. To schedule a consultation, fill out the form below today.



*The above is not meant to be legal advice, and every case is different. Feel free to reach out to us at Hoover Krepelka, LLP, if you have any questions. Information contained in this content and website should not be relied on as legal advice. You should consult an attorney for advice on your specific situation. 

Visiting this site or relying on information gleaned from the site does not create an attorney-client relationship. The content on this website is the property of Hoover Krepelka, LLP and may not be used without the written consent thereof.


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