What is the difference between legal separation and divorce in California?
Are you considering a divorce or legal separation and don’t know which to choose? At Families First Mediation, we offer both legal separate and divorce services, and help you decide which one is right for you. We are in San Jose, Ca and also offer video conferencing for those needing divorce mediation services and are out of the area.
There are important differences between a legal separation and a divorce that you should know about so you can choose wisely. The good news: you could start with a legal separation and then later divorce. You don’t need to start with a legal separation. This is a common misunderstanding.
Important differences between legal separation and divorce in California:
- In a legal separation, you are still married to your spouse and cannot remarry someone else. In a divorce, you are no longer married to your spouse and can remarry.
- In a legal separation, you do not have to wait for your status to change because it does not really change. In divorce, you have a minimum wait of 6 months and a day from serving the Petition for Dissolution to when your status can change from married to single.
- In legal separation, you might qualify for health care coverage under your spouse. Check with your insurance carrier. With a divorce, you may qualify for COBRA benefits once your divorce is final and your health coverage ends.
- In legal separation, your tax filing will still be as a married couple. Most likely, you will choose to file married filing separately. For divorcing couples, they no longer qualify to file jointly.
- In legal separation, the couple may hope to reconcile; whereas in divorce, the couple has no intention to reconcile.
- You do not need to meet California’s residency requirement to file for a legal separation, but you do for a divorce (6 months in the State and 3 months in the county).
How is legal separation and divorce the same in California?
Both require you to complete a legal process to divorce or legally separate. The requirements involved are very similar for both divorce and legal separation. Just as in a divorce, in a legal separation case, you can ask the judge for orders like child support, spousal support, custody and visitation, domestic violence restraining orders. You can find solid information on legal separation at the following by clicking the following link.
Can I choose to be legally separated?
Both spouses must agree to be legally separated in California. California is a no-fault state. In other words, only one spouse can desire a divorce. Only one spouse needs to claim that there are irreconcilable differences to get a divorce. You do not have to prove that in court. Thus, if a spouse requests a legal separation but the other requests a divorce, legal separation is not an option for this couple.
Can I change my mind?
Generally, yes. You can file for a legal separation and later pursue a divorce action. For example, if you file for a legal separation, you may later be able to file an amended petition to ask the Court for a divorce-after you meet the residency requirements. You can even start as a divorce, and if both spouses agree, they can pursue a legal separation instead (so long as the divorce has not been finalized).
How do I know which to choose?
A legal separation might be the best option for you if you do not want to get divorced but may want to formally change the responsibilities and obligations between you and your spouse by separating. Some of these reasons include:
- Terminating community property rights
- Protecting oneself from personal liability for the other spouse’s future debts
- Emotional and physical separation
- Religious reasons. Catholic Answers has dealt with some of these difficult questions at the Permanence of Matrimony.”
What can I do next?
This is an important decision and we can help you determine the best route for you, whether a legal separation, a divorce, or a mixture. Contact us today at [email protected] or call us at (408) 357-3486 and see if we can help guide you in the right direction.