Legal Separation vs. Dissolution
In California, dissolution is the legal term for divorce. A dissolution ends the marriage or domestic partnership. A legal separation does not.
A legal separation judgment can divide property and debts and include support or custody orders, but the parties remain legally married. Because the marriage is not terminated, neither spouse can remarry after a legal separation judgment.
A dissolution judgment terminates marital status and allows the parties to become legally single.
Why Someone May Start With Legal Separation
Some people begin with legal separation and later convert the case to divorce.
California has residency requirements for divorce. In most cases, at least one spouse must have lived in California for six months and in the county of filing for three months before filing for divorce. Legal separation does not have the same waiting requirement, so it may be used when a party needs to start a case before qualifying for divorce.
- one spouse recently moved to California
- the divorce residency requirements were not met when the case was filed
- the parties were not ready to terminate marital status
- one spouse originally wanted legal separation but later decided to divorce
- the parties wanted court orders while deciding whether to end the marriage
- religious, financial, insurance, or personal reasons changed over time
Converting Legal Separation Before Judgment
If the legal separation case is still pending, it may be possible to change the case to a dissolution before judgment is entered.
This usually involves changing the requested case type from legal separation to dissolution. The court file must show that the party is now asking for divorce rather than legal separation.
If the original filing was a Petition for legal separation, the petition may need to be amended to request dissolution instead. If the other spouse filed for legal separation but the responding spouse wants a divorce, the responding spouse may request dissolution in the Response.
The Petition Still Matters
A divorce or legal separation case starts with a petition. The Petition identifies the type of case being requested and the issues that may be included in the judgment.
If the Petition originally requested legal separation, and the party later wants divorce, the pleading may need to be changed so the court has a request for dissolution before terminating marital status.
The court cannot terminate marital status in a legal separation judgment unless dissolution is properly requested.
Residency Requirements Still Matter
A legal separation case may be filed without satisfying the divorce residency waiting period, but dissolution generally requires the divorce residency requirements to be met.
This means a party who started with legal separation because they had not lived in California or the filing county long enough may need to wait until the residency requirement is satisfied before the case can become a divorce.
Once the requirement is met, the case may be changed from legal separation to dissolution if the proper paperwork is filed.
What Happens to the Existing Case?
When a pending legal separation case is converted to dissolution, the existing case may continue rather than starting over. The same case can still address property, debts, custody, support, and other family law issues.
The main change is that the party is now asking the court to terminate marital status through a divorce judgment instead of entering a legal separation judgment.
What If a Legal Separation Judgment Was Already Entered?
Converting a pending legal separation case is different from getting divorced after a legal separation judgment has already been entered.
If a final legal separation judgment has already been entered, the parties may need to file a new divorce case to terminate marital status. The proper procedure depends on the status of the case, the terms of the legal separation judgment, and what issues still need to be resolved.
A legal separation judgment does not automatically become a divorce judgment.
Can the Other Spouse Request Divorce Instead?
Yes. If one spouse files for legal separation, the other spouse may respond and request divorce instead.
This can happen when one spouse wants to remain legally married but the other spouse wants marital status terminated. In that situation, the case may proceed as a divorce if the requirements for dissolution are met.
Converting Legal Separation by Agreement
If both spouses agree to change the case from legal separation to divorce, the process may be simpler.
The parties may be able to proceed by agreement, amend the necessary paperwork, and submit a final divorce judgment once the legal requirements are satisfied.
Even when both spouses agree, the court still needs the proper paperwork before it can enter a dissolution judgment.
Issues That May Be Included After Conversion
After a legal separation case is changed to dissolution, the court may still address the same family law issues. The difference is that the final judgment may now end the marriage rather than only legally separate the parties.
- property division
- debt division
- child custody
- parenting time
- child support
- spousal support
- attorney's fees
- restoration of a former name
- termination of marital status