What Is Legal Separation?
Legal separation is a court case where spouses or domestic partners ask the court to make orders about their legal and financial relationship without ending the marriage or domestic partnership.
Legal separation can be useful when spouses want formal court orders but do not want, or are not yet able, to get divorced.
- property division
- debt division
- child custody
- parenting time
- child support
- spousal support
- attorney's fees
Legal Separation Does Not End the Marriage
The most important difference between legal separation and divorce is that legal separation does not end the marriage.
After a legal separation judgment, the parties remain legally married. They may live separately, divide property and debts, and have support or custody orders, but they are not divorced.
Because the marriage is not terminated, neither spouse can remarry unless they later obtain a divorce.
Legal Separation vs. Divorce
Legal separation and divorce can address many of the same issues, but they have different legal effects.
A divorce ends the marriage. A legal separation does not.
Both cases may involve property division, debt division, custody, support, and other family law orders. However, only a divorce terminates marital status and allows the parties to remarry.
Some people choose legal separation because of religious reasons, financial concerns, insurance issues, immigration concerns, personal beliefs, or because they do not yet meet California's divorce residency requirements.
Residency Requirements for Legal Separation
California has residency requirements for divorce. In most divorce cases, at least one spouse must have lived in California for at least six months and in the county of filing for at least three months.
Legal separation is different. To file for legal separation in California, one spouse must live in California, but there is no minimum length of time that person must have lived in the state.
This can make legal separation an option for someone who recently moved to California and wants to start a family law case before qualifying to file for divorce.
Legal Separation and Later Divorce
A legal separation case may sometimes be changed to a divorce case later.
For example, if someone files for legal separation because they do not yet meet the divorce residency requirements, they may later seek to amend the case to divorce once the residency requirements are met.
Legal separation can also be used when the parties are not ready to divorce but still need formal court orders.
Issues That Can Be Addressed in Legal Separation
A legal separation can address many of the same issues as a divorce. The exact orders depend on the facts of the case and the requests made in the paperwork.
- who is responsible for debts
- how property will be divided
- whether one spouse will pay support
- custody of minor children
- parenting schedules
- child support
- health insurance
- attorney's fees
- use of bank accounts, vehicles, or real property
Legal Separation and Property Division
Legal separation can include orders dividing community property and debts. This may include bank accounts, vehicles, real estate, retirement accounts, credit cards, loans, and other assets or obligations.
Because property and debt orders can have long-term consequences, legal separation paperwork should be prepared carefully.
Legal Separation and Children
If the parties have minor children, a legal separation can include child custody and parenting time orders.
The court may also make child support orders. Child-related orders in a legal separation can address where the children live, how parenting time is shared, holiday schedules, health insurance, childcare costs, and other child-related issues.
Legal Separation and Spousal Support
A legal separation can include spousal support orders.
Spousal support may be temporary while the case is pending or included as part of a final legal separation judgment. The amount and duration of support depend on the facts of the case.
Why Someone May Choose Legal Separation
People may choose legal separation for different reasons. Legal separation is not right for every situation, but it can be useful in cases where divorce is not the desired or available option.
- they do not want to divorce for religious reasons
- they want to remain legally married
- they need court orders but are not ready to divorce
- they recently moved to California and do not meet divorce residency requirements
- they have financial or insurance considerations
- they want to separate property and debts without ending marital status
- they want custody or support orders while remaining married
Legal Separation Is Different From Date of Separation
Legal separation is not the same as the date of separation.
The date of separation is the date when there was a complete and final break in the marital relationship. Legal separation is a formal court case.
A person can have a date of separation without filing a legal separation case. A legal separation case requires court paperwork and a court judgment.