Legal Separation vs. Divorce
What is the difference between a Legal Separation and a Divorce?
My partner and I no longer live together and have filed for Divorce, does that mean we are Legally Separated?
Short answer: No, you are not Legally Separated.
In California, married couples and couples in domestic relationships generally have two options when they want to legally end their relationship. One, they can file for Divorce (aka Dissolution of Marriage), or two, they can file for Legal Separation. [1][2]
It is a common misconception that when couples “separate”, with the intent of getting Divorced, that they are Legally Separated. Legal Separation, however, is its own distinct legal process that only results from a final Judgment of the court. Individual acts to physically or emotionally separate yourself from your spouse or partner, alone, do not result in a Legal Separation.
So, what’s the difference between getting Divorced and Legally Separating?
The process and paperwork for Divorce and Legal Separation are nearly identical, with one important distinction - marital status. Both Divorce and Legal Separation will result in a final Judgment of the court which will divide the couple’s property, define child custody and support (if the couple has children), and award spousal support if appropriate.
Importantly, however, a final Judgment of Dissolution (Divorce) will also terminate the couple’s marital status, meaning they will no longer be married and are therefore free to marry someone else if they wish. [3] While a final Judgment of Legal Separation will not terminate the couple’s marital status - they will remain legally married and unable to marry anyone else.
Why would anyone want to remain legally married?
Every couple’s situation is unique, however, some couples opt for Legal Separation over Divorce based on religious or moral reasons.
It is important to note, however, that even if a couple opts for Legal Separation and receives a final Judgment for the same, either party, at any time, can file for Dissolution of Marriage to obtain a Judgment terminating their marital status. [4]
Can we do Mediation if we want to Legally Separate instead of get Divorced?
YES - Couples wishing to Legally Separate can still utilize and reap the advantages of Mediation. Mediation can offer a less adversarial, more effective way to resolve disputes while prioritizing the well-being and privacy of your family.
Lea M. Nemeth is dedicated to helping you achieve the best possible outcome for your particular circumstance. Book a Consultation today to learn more about how Mediation can benefit you and your loved ones.
Related FAQs:
Does California’s 6-Month Cooling Off Period still apply to Legal Separations?
Yes
Is our “Date of Separation” the date we become Legally Separated?
No, the date you are officially Legally Separated will be on your final Judgment of Legal Separation.
Footnotes
[1] See Family Code § 2310
[2] In addition to Divorce and Legal Separation, there is a third process available to end a marriage - Annulment. However, this is only applicable in situations in which the marriage is not legally valid. See Family Code §§ 2200 - 2210.
[3] See Family Code §§ 2300, 2340
[4] See Family Code § 2347
