Legal Separation vs. Divorce in California

Californians with marital problems have more than one option when they decide to live apart. They can file for a divorce or a legal separation. There are pros and cons to each option. So, read on to learn what you need to know about legal separation vs. divorce in California. 

What Is Legal Separation?

If your marriage is not working out, but you are unsure whether you want to end it permanently, you might consider a legal separation. A legal separation is a court order that declares the parties to be individuals living apart and legally separate. A legal separation judgment establishes boundaries and rules regarding custody, finances, and assets. A big difference between California legal separation vs. divorce is that legal separation is not permanent. The parties are not single and cannot remarry. During a legal separation, the spouses remain legally married.

One of the biggest benefits of the legal separation vs. divorce in California is that the parties can easily reconcile since they are still legally married. Therefore, even with a legal separation judgment, if you are asked about your marital status, you are still very much married. 

The legal separation procedure

The legal separation procedure in California involves one or both parties filing a motion for legal separation with the court. In addition, California law requires that at least one of the parties to the marriage be a California resident. The legal separation procedure involves the following steps:

  1. Decide on the legal grounds for your separation. Even though California is a “no-fault” state, the parties must list a reason for separation, including simply “irreconcilable differences.” 
  2. File a petition for legal separation.
  3. File the necessary court papers listing children and property and whether there is an agreement on those issues or if the court needs to determine some or all of the issues surrounding child custody, support, and property.
  4. If you have minor children, you will need to file a form regarding the child’s jurisdiction. If there is a disagreement about where the child resides, the court will need to determine whether it has jurisdiction to make legal decisions regarding custody and other issues in your case. 
  5. Pay the necessary court fees.
  6. Serve the other spouse or have the other spouse accept service.

The parties must negotiate difficult issues, just as in a divorce case. The legal separation order will usually determine issues such as:

  • Who will continue to live in the family home?
  • What will the custody arrangement be for any minor children?
  • Will child support be paid by one spouse to the other, and how much?
  • How will the marital assets be divided?
  • Will spousal support be paid, and how much?

Why Choose Legal Separation Over Divorce?

There are many reasons spouses choose a legal separation over filing for divorce. Some of the most common include the following:

  • They are not sure whether they truly want to end their marriage.
  • There are financial benefits, such as tax incentives, to remaining legally married.
  • One spouse’s health insurance plan covers the other spouse, and he or she doesn’t want to lose that insurance coverage. 
  • Because of religious or other personal values, one or both spouses are against divorce.
  • They have not been residents of California for the required time period to file for divorce. 

California Requirements for Separation

To file for separation in California, one spouse must be a resident of California. If you are a California resident, you can immediately file for a legal separation. To file for a divorce, you must have been a California resident for at least six months. The residency requirement is another reason a couple might opt for a legal separation in California versus divorce. 

Even though California is a no-fault state, spouses are required to list a reason for filing for a legal separation or a divorce. However, California only recognizes two valid reasons when filing a petition for legal separation or divorce—irreconcilable differences or incurable insanity. 

If you list incurable insanity as your reason, you will have to present proof to the court and have a ruling that the spouse is suffering from incurable insanity. However, if you list irreconcilable differences as your reason, you only need to state that the spouses can no longer be agreeable with one another. 

What Is Divorce?

Legal separation and divorce in California are quite different. Even though they have similarities, a divorce is a permanent legal end to the marriage. Until a judge signs a decree stating that your marriage is terminated, you are still married. The divorce decree dissolves the marriage and terminates all legal ties between the spouses.

Also read:How to Win a Divorce Case: 6 Tactics for Lawyers

For couples going through a divorce, the process is never a walk in the park. It is emotionally challenging and extremely draining for...

It is wise to consult with an experienced divorce attorney to fully understand the differences between legal separation and divorce and discuss what to expect during the divorce process in California. Remember, without a divorce decree, you cannot legally marry another person, and you remain legally bound to your spouse. 

The divorce procedure

When a spouse decides to file for divorce, there are specific steps that he or she must take. In California, the following steps are typical when filing for divorce:

  1. A spouse must file for divorce and have it served on the other spouse. You may want to consult a family law attorney to help you through this process. 
  2. The spouse who is served a petition for divorce has 30 days to file a response with the court.
  3. A hearing date is set, often in a family law court, to determine temporary issues like interim child custody, child support, spousal support, and possession of assets.
  4. The court sets deadlines for the parties to exchange information and conduct discovery.
  5. If the parties cannot agree on the issues, the court will determine the issues until a final trial can be held.
  6. After six months, a divorce decree may be granted.
  7. If the parties have not reached an agreement on the issues of child custody and support, spousal support, and property division, a trial will be set to decide those issues. 
Do you need legal assistance?Find the right lawyer in your area.

Why Choose Divorce Over Legal Separation? 

There are many reasons for a couple or one spouse to choose divorce over a legal separation. When considering legal separation vs. divorce in CA, divorce could be a better option for the following reasons:

  • One of the spouses wants to remarry. Because you cannot remarry if you are only legally separated, you must be divorced to remarry.
  • You know that you want to end your marriage and do not want to consider reconciliation.
  • There is no emotional, financial, moral, or religious reason to stay married. 

California Requirements for Divorce

Although California is a no-fault state, a person must give a reason for filing a petition for divorce. Most people allege “irreconcilable differences” as their reason for filing their divorce case. If you allege irreconcilable differences, you only need to state that you cannot get along with your spouse. The only other reason recognized in California is “incurable insanity.” If you allege incurable insanity, you will need to prove your case with evidence supporting your claim. 

Another requirement for filing a petition for divorce in California is residency. You must have been a resident of California for at least six months to file for divorce in the state. In addition, the same spouse must also be a resident of the county in which he or she files the petition for divorce for at least three months. Because of the residency requirement, there is often a waiting period before spouses may file for divorce. 

There is an exception to the residency requirement for same-sex couples. If a same-sex couple was married in California and then moves to a state that does not permit them to divorce, the partners may still file for divorce in California without residing in California. 

Difference between Separation and Divorce in California

The main difference between a legal separation and divorce in California is that a divorce is a permanent end to the marriage. Therefore, if a couple is legally separated, they cannot remarry, but they can easily reconcile and resume their married life together. However, if a couple is divorced, they are free to remarry. If they choose to recommit to each other, they would need to legally marry again. 

Availability of Other Orders in Divorce or Legal Separation

California family courts can make many court orders in legal separation cases and in divorce cases. The following types of orders may be made by the court system in divorce proceedings, as well as in legal separation cases:

  • Spousal support;
  • Property division;
  • Child custody;
  • Child support; and
  • Restraining or protective orders.


California couples facing marital issues have a choice when considering whether to end their marriage. They must choose legal separation vs. divorce in CA. They may go straight to divorce, or they can choose to obtain a legal separation first before fully committing to divorce. There are residency requirements for filing for either.  

A legal separation in California offers married couples the option of setting legal boundaries and decisions that are less severe and permanent than filing for divorce. However, there are pros and cons to both legal separation and divorce, so it’s essential to understand each process. 

Marital issues can be incredibly stressful, but knowing that you have options can help you find your way through this difficult time and give you a sense of control.

Article by Yevheniia Savchenko

Yevheniia Savchenko is a Legal Writer at Lawrina. Yevheniia browses through the most interesting and relevant news in the legal and legaltech world and collects them on Lawrina’s blog. Also, Yevheniia composes various how-to guides on legaltech, plus writes product articles and release notes for Loio, AI-powered contract review and drafting software.

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