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Legal Separation vs. Divorce in California

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There are a few important distinctions between legal separation and divorce in California, and it may be worthwhile to know these differences as you decide to separate from your spouse. In this blog, we will discuss the similarities and differences between legal separation and divorce in California and how each process will affect your previously shared benefits and responsibilities.

Legal Separation vs. Divorce

Legal separation and divorce operate quite similarly in the filing process. In a legal separation case, you will go through the same process as in a divorce to divide marital assets and debts, and you will still be filing the petition with a family law court. In both the proceedings for legal separation and divorce proceedings, the court will decide the following:

  • separation maintenance (e.g. alimony and child support);
  • child custody;
  • child visitation;
  • property division.

There are key differences, though, between legal separation and divorce, most prominent of which is that in a legal separation you do not terminate your marital status. Keep reading to learn about more the legal separation process and divorce process, as well as more specific distinctions between the two.

Legal Separation

A legal separation is a process where married persons obtain a legal separation judgment from the family law court. The judgment may include a division of assets and debts, child custody and visitation orders, and an order for support. Note that following a legal separation order the spouses are still legally married, and their marriage is not terminated.

Some reasons couples may opt for legal separation could be:

  • potential for future reconciliation (you will not need to remarry as you would for a divorce);
  • residency restrictions barring divorce;
  • religious reasons.

To file for legal separation, both parties will need to decide on the legal grounds for the separation, whether it is irreconcilable differences or incurable insanity. You will file the form (FL-100) at your local county court and check the box on the form for separation. You will also need to provide information about your children and property. You can request that the court decide on child custody. Note that there is a filing fee for the petition.

Note that the “date of separation” is an integral part of both the legal separation process and the divorce process. In California, the date of separation is the date that there is a complete and final break in the marital relationship evidenced by two factors:

  • one spouse expresses an intent to the other that they want to end their marriage
  • there is conduct of that spouse that is consistent with their intent to end the marriage.

The date of separation is important in filing your petition for either a legal separation or a divorce, as you are going to allege the date of separation on your initial pleading. Your date of separation is going to affect a number of things, mainly regarding the division of property and debts. For example, if you purchased a property during marriage prior to the date of separation, it is considered community property between you two. However, if you purchased a property after the date of separation, it is considered your separate property.


As discussed above, the process for filing a divorce is similar to that of legal separation, but the main distinction is that a divorce, also called a dissolution of the marriage, terminates the marriage. In a divorce proceeding, the divorce petition is filed and served from one spouse to the other. The receiving spouse (the respondent) then has 30 days to file a response to the petition. Depending on the circumstances, one of the spouses may request a hearing where a judge will create temporary child custody and spousal support. Be aware that each person is required to disclose their income and expenses in the divorce process.

With the supervision of their own attorneys, the spouses can then meet with each other to discuss settlement of the case and sign a Marital Settlement Agreement. Note that a trial will take place if one spouse doesn’t agree on all issues in the agreement.

One main reason people may opt for divorce over legal separation is that in a legal separation, in the case of reconciliation, you’re not restored to the status of a single individual and thus can’t remarry. Bigamy is illegal in California, so if you want to remarry, you need to get divorced and dissolve your marriage.

Benefits Impacted

Certain benefits and other shared responsibilities may be affected by a legal separation or divorce judgment. Some benefits that may be impacted differently by either form of separation include:

  • Tax implications: legally separated spouses are still married and thus may still file taxes jointly, and married couples may also still have tax liability due to the other party’s non-reporting or non-payment.
  • Social Security benefits: divorced parties may have the right to “derivative” benefits of the other party’s accumulated Social Security benefits if married for 10+ years.
  • Death benefits: legal implications could arise upon the death of one of the parties. For example, if the agreement or judgment does not have waiver provisions that disallow seizure of assets upon one party’s future death, the other party may have an interest in the assets of the deceased spouse.
  • Retirement accounts: issues may arise regarding accounts like 401(k), IRA, pension, retirement savings, deferred compensation, life insurance savings for the purposes of tax and beneficiary designation following separation.
  • Decision-making: spouses are still considered next of kin and can still make medical or financial decisions for the other; divorced spouses aren't considered next of kin.
  • Marital status: legal separation allows you to retain your marital status, meaning that cannot remarry until you divorce.
  • Debts/liabilities: spouses may still be responsible for the debt of the other in a legal separation, unlike a divorce where the debts are handled during the dissolution process.
  • Property rights: legal separation preserves each spouse's legal rights to property benefits upon the death of the other, but a divorce extinguishes these rights.
  • Other benefits: divorce allows both parties to change beneficiaries for certain life insurance policies and other financial accounts, but legal separation does not automatically warrant a change in beneficiary designation.

Let an Experienced Attorney Help. Contact Claery & Hammond, LLP!

If you seek to separate from your spouse, whether it be legal separation or divorce, it will be important to have efficient legal representation throughout the process, from filing the divorce petition to discussing your settlements. The attorneys at Claery & Hammond, LLP can evaluate your case and determine your next best legal steps to move forward with the separation process.

Contact Claery & Hammond, LLPtoday to schedule your free consultation.


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