Marriages are a wonderful union between two individuals. They choose to share a life together by building memories, assets, and families with one another. Unfortunately, marriages don’t always end as joyfully as they begin. Some couples find themselves facing separation or divorce and the need to divide the life they have joined together. However, understanding legal separation vs. divorce in California may not be as easy as it sounds.
If you are facing difficulties in your marriage, you may think that your only option is an emotional and traumatic divorce process, but you may find legal separation a better option.
Legal Separation Versus Divorce
Legal separation is the process by which a couple remains legally married, but you create a settlement similar to a divorce. In this settlement, assets and debts will be divided, spousal support will be determined, and decisions about child support and custody will be made. Under legal separation, spouses are not allowed to remarry as they are still married to one another.
Choosing a legal separation may not seem productive to a couple as they are dividing everything as if they are divorcing. However, there may be religious beliefs, personal beliefs, or any number of financial reasons that may prevent the couple from divorcing. By staying married, both spouses may benefit from the other’s insurance or health benefits that they would otherwise lose in a divorce.
Another reason a couple may choose a legal separation is the requirement that before divorcing, at least one spouse must have lived in the state for six months and at least three months in the county in which they reside. There is no minimum residency requirement that couples must meet for a legal separation. If one spouse has established residency in the state through a separation, they must still wait for three months before submitting a divorce petition.
In a divorce, the couple legally ends the marriage and after the final divorce decree is established, are free to marry again if they wish.
Divorce Versus Legal Separation Process
The process for divorce and legal separation is relatively similar. The forms to be filed are the same for both; the major difference is that on the submitted forms, there is a designation that the forms are for a legal separation rather than a divorce. Other major differences include:
- There is a minimum residency requirement for a divorce but not for a legal separation.
- There is a mandatory six-month waiting period after the serving of divorce papers from one spouse to the other before a divorce can be finalized, while legal separation has no such waiting period.
- While a divorce is a legal end to a marriage, a legal separation is not a finalization of a marriage.
These are a few of the key differences between legal separation and divorce. Some couples find that engaging in a legal separation prior to divorce allows them to reach a settlement prior to finalizing a divorce, which means the process can be completed more easily should the couple decide to go from a separation to a divorce.
To truly understand which option may be right for you is to speak with a qualified and experienced family law attorney. With the support and empowerment from their counsel, you will be able to decide which may be right for you and your family. Both may leave you feeling isolated and filled with mixed emotions. An attorney can ensure you stay on track through the process.
FAQs
Q: What Are the Disadvantages of a Legal Separation?
A: While there are benefits to a legal separation that couples who choose not to divorce can enjoy, there are still disadvantages as well. For some couples, remaining married keeps finances and other benefits entangled when they look to separate them. There are no additional tax benefits offered to legally separated individuals that those who are divorced may enjoy. Spouses would still have access to the other’s estate unless explicitly stated otherwise.
Q: Does Legal Separation Protect Me Financially in California?
A: In a legal separation, the finances of both spouses are generally separated and left to their individual charge. However, there may be instances of a legal separation in which finances may still intertwine. You should speak with a family law attorney who can help evaluate your situation and offer you counsel that helps you understand how your legal separation may impact your finances.
Q: Do I Have to Pay Spousal Support During a Legal Separation?
A: Spousal support may be awarded in a legal separation case. Like in a divorce, legal separation takes into account the standard of living, income, and income potential of both spouses at the time of the separation settlement. With this information, the court will determine if one spouse is required to pay the other. The purpose of that support is to allow the receiving spouse an opportunity to reach financial stability.
Q: Is California a Community Property State?
A: California is a community property state, which could have impacts on either your legal separation or divorce. In a community property state, any assets or debts collected during a marriage are owned by both spouses equally. This means that assets such as investments, homes, vehicles, and more are the right of either spouse to claim. Unless agreed upon by the spouses, a court will determine how to divide assets and debts equally.
Los Angeles Family Law Attorney
While not all marriages are successful, there are options if you believe yours is at risk of dissolving. With the help of the team at The Dorie A. Rogers, APC, you can choose the option that is right for you. While divorce is the most well-known option, there are other ways to take a step back. Contact our offices today and let our skilled and experienced team help you navigate the circumstances you face.
