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Legal Separation in California: How is it Different from Divorce?

Separation is a simple concept: two people don't live together anymore. But what is legal separation? And how does legal separation differ from divorce in California?

Legal separation is like "divorce light." The couple, with the help of their lawyers and/or the court, tackle many of the issues a divorcing couple would: support, division of property and debt, and child custody. But there is one major difference between a divorce and a California legal separation: the couple is still technically married.

Why a Legal Separation Might Make Sense

It may seem a bit ridiculous and wasteful to expend time and money on pursuing an almost-divorce, but there are some good reasons why people choose legal separation over a full-on divorce.

  • One big reason is insurance. A couple might make the decision to split, but one spouse may want to provide for the other through medical coverage and other benefits only available to married couples.
  • An even bigger benefit is social security -- after ten years of marriage, a lesser-earning spouse may be entitled to an amount equal to half of what the bread-winning spouse would get.
  • Another reason is a trial separation. A married couple, working through significant issues, may wish to try living apart, but need a guiding hand to decide difficult issues like custody, alimony, and child support. A side benefit is ensuring that each spouse isn't liable for debts incurred by the other spouse during this period of separation.
  • A fourth reason is meeting residency requirements. California requires individuals seeking a divorce to meet a residency requirement (six months in the state and three months in the county) before filing for divorce, but a legal separation has no residency requirement and can serve the same purpose while a couple waits out the residency period – the parties simply amend the separation petition after six months to change it from a separation proceeding to a divorce proceeding.
  • The final big reason is religion -- some religions prohibit divorce altogether or require a lengthy process and the blessing of a religious leader before a divorce can be granted. Couples may wish to separate and handle the big issues (such as support or asset division) in the meantime.

There may also be tax, estate planning, or retirement benefits that come with being married that will be preserved in the event of a legal separation.

Why it May Not Make Sense

Quite simply: it can double the cost of your divorce. Not only are you paying filing fees with the court to process your separation (and later, additional fees for your divorce), but you're probably paying a lawyer for either or both as well. Absent one of the compelling reasons listed above (insurance, retirement benefits, trial separation, residency, or religion), a legal separation may be a wasted expense on a path to inevitable divorce.

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