Summary: Legal separation in California allows couples to live separately and resolve important issues such as child custody, support, and property division while remaining legally married. It can provide time to evaluate the future of the relationship, maintain certain benefits, and create a smoother transition if divorce is later chosen. However, legal separation also has limitations, including the inability to remarry and continued financial ties between spouses, making it important to understand the benefits and drawbacks before deciding.
If your marriage is going through a difficult phase, you may be evaluating your options. While the option of divorce is always available, it isn't the only alternative. There is another, less permanent means to separate from your spouse.
Legal separation is a viable choice for individuals who want to live separately but give their marriage a chance. It isn't the end of the road - but it's also not the same as spending every day with your spouse. In this blog, we'll explore the pros and cons of legal separation in California.
Difference Between Divorce & Legal Separation
Legal separation is the middle point of staying married and divorce. The major difference between the two lies in the finality of each - while divorce is permanent and the spouses are considered single once again, legal separation isn't final, and the spouses cannot remarry until they divorce each other. Divorce also means that no financial ties exist between the spouses anymore.
On the other hand, spouses who have legally separated are still married to each other. They cannot remarry until they are divorced. If both parties agree, legal separation can be reversed at any time, and any court order made regarding the separation will be considered null and void.
Like divorce, when a couple legally separate, they are required to resolve several issues:
- Child Custody
- Child Support
- Spousal Support
- Asset Division
If the couple reconciles from legal separation, any orders made concerning the above will cease into effect immediately. If the couple decides to opt for divorce, these orders can be made permanent.
Pros of Legal Separation
There are pros and cons of legally separating from your spouse instead of divorcing. But before you decide, you must know the benefits and drawbacks of each.
The foremost benefit of legal separation is that the couple is still married and can reverse their decision at any time in the future. Here are some reasons why legal separation is opted by spouses in California:
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Temporary
If you are unhappy in your marriage but divorce seems a step too far, legal separation allows you and your spouse to separate for a while and make calm-headed decisions without permanently ending the marriage. Legal separation is like divorce in a snapshot - you and your ex-spouse live separately without ending the marriage.
Legal separation helps spouses to reconcile differences. In some cases, it also serves as a transit point to divorce. Either way, both spouses can take time off each other and evaluate options in a non-influential manner.
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Immediate
Another major advantage of legal separation is that it goes into effect immediately. Unlike a six-month waiting period in divorce, legal separation comes into effect immediately after the judge's approval.
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Relieves Stress
Legal separation provides an interim relief to the spouses from each other. They can utilize this time to make calculated decisions about their marriage rather than compulsively ending the union permanently. Thus, legal separation helps both parties to make the transition toward divorce smoothly.
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Tax Benefits
Married individuals enjoy several tax benefits in the US, one of them being filing taxes jointly. In a legal separation, the couple continues to file taxes jointly, thus saving money that they would otherwise lose by filing taxes separately post-divorce.
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Simplifies Future Divorce
If legally separated spouses decide to dissolve their marriage, the decisions made initially during separation, like child custody and support, continue to be in effect during divorce. Therefore, legal separation can become the foundation of your possible divorce. Legally separated couples may obtain a divorce by simply re-submitting the paperwork.
Cons of Legal Separation
Legal separation may be ideal for some couples in certain situations, but they have drawbacks as well. This is because they are still considered legally married to one another, which is why some couples opt for divorce. Here are the drawbacks of legal separation:
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Cannot Remarry
Legally separated spouses are still considered legally married. This means they cannot remarry until obtaining a divorce. If they want to remarry during a legal separation, they will first have to obtain a divorce and restore their single status.
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Financial Ties
California is a community property state, meaning married couples share assets and debts equally. Even upon legal separation, the spouses continue to share these rights and responsibilities toward each other's assets and debts. Thus, a debt acquired by one spouse after separation will be considered community property. This is a major deterrent for those wanting to achieve financial independence from their partner.
Consult with an Orange County Divorce Attorney
Legal separation and divorce are crucial decisions that should not be taken lightly. A separation can become permanent and retain its original terms for divorce. Thus, it is always advisable to hire an experienced divorce and family law attorney before taking any step.
If you are considering legal separation or divorce, consult with JOS Family Law to discuss your options. We will understand your situation and inform you whether legal separation or divorce is the right course of action in your case.
Frequently Asked Questions
1. What is the main legal difference between separation and divorce?
The primary difference is the marital status. In a divorce, the marriage is legally dissolved, and you are restored to the status of a "single person," allowing you to remarry. In a legal separation, you remain technically married but receive court orders regarding property division, child custody, and support. Because you are still legally married, you cannot marry someone else.
2. What are the primary "Pros" of choosing legal separation?
There are several strategic reasons why a couple might choose separation over divorce:
Health Insurance: In many cases, one spouse can remain on the other’s employer-sponsored health insurance plan, which is usually terminated in a divorce.
Religious Beliefs: It allows couples whose religion discourages divorce to live separate lives with formal legal protections.
Social Security & Military Benefits: If a couple is close to the 10-year mark required for certain federal benefits, separation allows them to reach that milestone while living apart.
No Residency Requirement: Unlike a divorce, which requires living in California for six months, you can file for legal separation immediately upon moving to the state.
3. What are the "Cons" or downsides of legal separation?
Cannot Remarry: As long as the legal separation is in place, neither party is free to marry anyone else.
Complex Legal Process: A legal separation requires the same amount of paperwork, court fees, and negotiations over assets as a divorce. It is not a "simpler" version of the process.
Finality: If one spouse later decides they want a divorce, they must file a new petition to "convert" the separation into a dissolution, which can lead to additional legal steps.
4. How does property division work in a legal separation?
Property division in a legal separation follows the same community property rules as a divorce. The court will identify, value, and divide assets and debts acquired during the marriage. Once the judgment of legal separation is entered, any assets or debts acquired by either spouse moving forward are generally considered their separate property.
5. Can one spouse force a legal separation if the other wants a divorce?
No. In California, a legal separation requires the consent of both parties. If one spouse files for legal separation but the other spouse files a response requesting a dissolution (divorce), the court will grant the divorce. The court cannot force someone to remain in a marriage if they wish to end it legally.
6. Does a legal separation automatically become a divorce after a certain amount of time?
No. A legal separation is a final judgment and will remain in effect indefinitely unless one of the parties takes the legal steps to "convert" it into a divorce or they decide to reconcile and ask the court to dismiss the separation order.
