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Choosing between a divorce and legal separation in California

On Behalf of | Oct 11, 2022 | Divorce |

When a California couple sees that their marriage is failing, they necessarily view the upcoming divorce process with much misgiving. However, California law offers an alternative that may work for some couples: legal separation.

Divorce v. legal separation: the differences

The essential difference between a divorce and a legal separation is simple: a divorce terminates the marriage, whereas a legal separation does not end the marriage. Instead, a legal separation is a court order that allows the spouses to live separately, and sets the terms of the separation, without ending the marriage. In fact, a couple can end a legal separation simply by deciding to again share the same residence and assume the other attributes of marriage.

Obtaining a legal separation

The spouse who desires the separation must file a petition for an order of legal separation with the state court in the county where that person lives. California has no minimum residence period for a legal separation. A copy of the petition must be served upon the other spouse.

Issues in a legal separation

The separated couple must work out solutions to the same issues they may face in a divorce: who lives in the family home? Will one spouse pay alimony or child support to the other support? Where will the children live? How will assets be divided?

Why choose a legal separation?

A legal separation has many benefits that a divorce does not. Under a legal separation, health insurance coverage remains intact. Federal income tax rates are generally lower for a separated couple than for divorced individuals. Lastly, a separation gives the couple a chance to sort through their differences before finally ending their marriage.

Sound legal counsel

As with divorces, no two separations are identical. While a couple’s financial situation may make a separation more attractive, a divorce may be necessary to end the couple’s emotional differences. Anyone considering either a divorce or legal separation may wish to consult an experienced divorce attorney for an evaluation of the situation and an opinion on the relative benefits of a divorce or legal separation.


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