Divorce Ends the Marriage
A divorce, also called dissolution, legally ends the marriage or domestic partnership.
After a divorce judgment is entered and marital status is terminated, the parties are no longer legally married. Each person is legally single and may remarry.
A divorce judgment can include orders about property division, debt division, child custody, child support, spousal support, attorney's fees, and other family law issues.
Legal Separation Does Not End the Marriage
A legal separation does not terminate marital status.
After a legal separation judgment, the parties remain legally married or in a domestic partnership. They may have court orders dividing property and debts, setting support, and addressing custody, but they are not divorced.
Because legal separation does not end the marriage, neither person can remarry unless they later obtain a divorce.
Both Cases Can Address Similar Issues
Legal separation and divorce can both address many of the same legal issues. The difference is not usually the type of orders the court can make. The difference is whether the marriage is legally ended.
- property division
- debt division
- child custody
- parenting time
- child support
- spousal support
- attorney's fees
- use of real property
- division of bank accounts
- division of retirement accounts
Residency Requirements Are Different
Divorce has residency requirements in California. 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 time-based residency requirement. A spouse may file for legal separation in California if one spouse lives in California, even if the person does not yet meet the residency requirement for divorce.
This is one reason someone may file for legal separation first and later change the case to divorce once the residency requirement is met.
Remarriage Is Only Available After Divorce
A person cannot remarry after a legal separation because the marriage has not been legally ended.
A person can remarry after a divorce, once marital status has been terminated and the divorce judgment is final.
This is one of the most practical differences between legal separation and divorce.
Legal Separation Can Be Changed to Divorce
A legal separation case may sometimes be changed to a divorce case before final judgment.
This may happen when a spouse originally filed for legal separation because they did not meet the divorce residency requirements, or because they were not ready to terminate marital status at the beginning of the case.
If a legal separation judgment has already been entered, the parties may need additional paperwork or a new divorce case to terminate marital status.
Reasons Someone May Choose Legal Separation
People may choose legal separation instead of divorce for different reasons. Legal separation is not the same as simply living apart. It is a formal court case that can result in binding court orders.
- religious reasons
- personal reasons
- financial concerns
- health insurance concerns
- immigration concerns
- not meeting divorce residency requirements
- wanting court orders without ending the marriage
- needing time before deciding whether to divorce
Reasons Someone May Choose Divorce
People may choose divorce when they want the marriage or domestic partnership legally ended.
Divorce may be appropriate when a person wants to become legally single, remarry in the future, fully end marital status, or obtain a final judgment dissolving the marriage.
Like legal separation, divorce can include orders about property, debts, children, and support.
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. It can affect property, debts, and support.
Legal separation is a court case. A person can have a date of separation without filing for legal separation.
Which Option Starts the Case?
Both divorce and legal separation begin with a petition.
The petition identifies whether the person is asking for divorce, legal separation, or another type of family law case. The court can only enter orders that are properly requested through the paperwork filed in the case.
If a person files for legal separation but later wants divorce, the paperwork may need to be amended or updated before the court can terminate marital status.