Family Law Blog

Divorce vs. Legal Separation in California

Overview – Divorce vs. Legal Separation

When a marriage has broken down, California law provides two primary legal options: dissolution of marriage (commonly called divorce) and legal separation. While both processes address the same core issues such as property division, spousal support, child custody, and child support, they differ in one fundamental way. A divorce terminates the marriage, while a legal separation does not. Understanding the differences between these two case types can help you make an informed decision about your situation.

What Is a Dissolution of Marriage (Divorce)?

A dissolution of marriage is the legal process that permanently ends a marriage. Once a judgment of dissolution is entered and marital status is terminated, both parties are restored to the status of single persons and are free to remarry.

California is a no-fault divorce state, which means that the only grounds needed to obtain a divorce are irreconcilable differences that have caused the irremediable breakdown of the marriage. In other words, when either spouse wishes to end the marriage, they have the right to do so without explaining themselves.

California has a mandatory six-month waiting period that delays the termination of marital status to a date no earlier than 6 months after the respondent is served with the Summons (FL-110) and Petition (FL-100) or the respondent files a Response (FL-120), whichever comes first. This waiting period is established under Family Code section 2339 and cannot be waived, even if both parties agree. During this time, the court can still make temporary orders regarding custody, support, and property.

What Is a Legal Separation?

A legal separation is a judgment that addresses all the same issues as a divorce like property division, spousal support, child custody, and child support, but does not terminate marital status. After a judgment of legal separation, the spouses are still legally married. You cannot remarry until a future judgment of divorce is entered, and you retain certain rights and obligations that come with marriage.

Legal separation is filed using the same Petition (FL-100) as a divorce, with the box checked for legal separation instead of dissolution. The process follows the same procedural rules, and the court applies the same legal standards for dividing property, awarding support, and determining custody.

Unlike divorce, there is no six-month waiting period for legal separation. A judgment of legal separation can be entered as soon as the case is ready for judgment.

Key Differences Between Divorce and Legal Separation

The most significant difference is marital status. After a divorce, you are single and free to remarry. After a legal separation, you remain married. This distinction affects several practical matters.

The availability of employer-sponsored health insurance is another potential difference. Many of these plans allow coverage of a spouse but terminate coverage upon divorce. A legal separation may allow the non-employee spouse to remain on the other spouse’s health insurance plan, which can be a significant financial benefit, particularly when one spouse has a pre-existing medical condition or limited access to affordable coverage. Check with the employer for clarification on coverage elibility if this is an important issue for you.

Social Security benefits may also be affected. To qualify for Social Security benefits based on a spouse’s earnings record, the marriage must have lasted at least ten years. If you are approaching the ten-year mark, a legal separation may allow you to address the crucial issues in your case while preserving the marriage for Social Security purposes.

Religious or personal beliefs lead some individuals to choose legal separation over divorce. Some faiths do not recognize or allow divorce, and, for some, a legal separation provides a way to live separately and resolve legal and financial issues without violating deeply held convictions.

Tax filing status can also differ. Legally separated spouses may still be able to file taxes as married filing jointly or married filing separately, depending on the circumstances and applicable tax law. After divorce, you must file as single or head of household if you qualify. Talk to a tax professional if this is an important issue in your case.

Can You Convert Between Divorce and Legal Separation?

Yes. Under Family Code section 2345, a proceeding for legal separation can be amended to a proceeding for dissolution (and vice versa) before a Judgment (FL-180) is entered. This means that if you initially file for legal separation and later decide you want a divorce, you can amend your Petition (FL-100).

After a Judgment (FL-180) of legal separation is entered, either party can file a new Petition (FL-100) for dissolution of marriage. The property division, support orders and other orders from the legal separation judgment will generally remain in effect.

Residency Requirements

An important distinction between the case types is that California has residency requirements for divorce but not for legal separation. Family Code section 2320 requires that at least one spouse must have been a resident of the state for the six months prior to filing and a resident of the county where the petition is filed for the three months prior to filing.

There is no residency requirement for legal separation. If you recently moved to California and need immediate court orders regarding custody, support, or property, you may be able to file for legal separation even if you have not yet met the residency requirements for divorce. Once you meet the residency requirements, you can amend the petition to a dissolution.

Which Option Is Right for You?

It is important to understand that both options involve the same court process, the same general legal standards, and the same potential for contested litigation. A legal separation is not a simpler or faster alternative to divorce; it is a parallel process with a different end result. The decision between a divorce or legal separation is a personal decision that each litigant has to make based on their individual circumstances.

Disclaimer: This article on California family law is published for informational purposes and does not constitute legal advice. Family law issues are fact-specific and complex. Consult with a licensed family law attorney for specific advice about your case.

Related Reading

• •California’s 8 Grounds for an Annulment (Nullity)
• •Community vs. Separate Property in California Divorce
• •Legal Custody, Physical Custody, and Visitation
• •Disclosures and Fiduciary Duties

Frequently Asked Questions

What is the main difference between divorce and legal separation in California?

A divorce (dissolution of marriage) terminates the marriage, restoring both parties to single status and allowing them to remarry. A legal separation does not end the marriage. The parties remain legally married, but the court can divide property, set spousal and child support, and issue custody orders. Both processes resolve the same financial and parenting issues; only marital status differs.

Why would someone choose legal separation instead of divorce?

People often choose legal separation for religious reasons, to preserve health insurance or other spousal benefits, to maintain a longer marriage for Social Security purposes, or because they do not yet meet California’s residency requirements. Some couples use legal separation as an interim step while deciding whether to divorce, since it allows formal financial and custody orders without ending the marriage.

Do I need to meet residency requirements for legal separation in California?

No. Unlike divorce, legal separation has no residency requirement. To file for divorce, one spouse must have lived in California for at least six months and in the filing county for three months. Legal separation can be filed immediately upon moving to California, which is one reason people sometimes start with a separation and convert it later.

Can I convert a legal separation to a divorce later?

Yes. Under Family Code §2345, a pending legal separation case can be amended to a dissolution case (or vice versa) before a Judgment (FL-180) is entered, by amending the Petition (FL-100). After a legal separation judgment has been entered, either party can file a new petition for dissolution. Property and support orders from the separation generally remain in effect.

Does legal separation affect health insurance and tax filing status?

It can. Many health plans terminate spousal coverage on divorce but allow it to continue during a legal separation. Confirm with the plan administrator before relying on this. For taxes, legally separated spouses may still file as married filing jointly or separately, depending on the circumstances and applicable tax law. After a divorce, you must file as single or head of household if you qualify.

Can a legally separated spouse remarry in California?

No. Legal separation does not end the marriage, so neither spouse is free to remarry. To remarry, the parties must obtain a Judgment of Dissolution. If a legally separated spouse wants to remarry, they must either amend the pending case to a dissolution before judgment or file a new petition for dissolution after the legal separation judgment is entered.

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