Legal Separation

Some separating spouses choose legal separation rather than divorce. For many it is a financially motivated decision. 

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Which road to take?

Legal separation is appropriate if you want to resolve your issues but stay married because you want to keep health insurance, employment benefits, other financial benefits of marriage OR because there are religious reasons OR you want to work on individual issues (emotional, psychological, addiction, etc.) and give future reconciliation a chance. 

If one spouse files a petition for legal separation and the other spouse wants to proceed with a divorce, the marriage or registered domestic partnership (RDP) will terminate by way of a divorce. Both spouses/RDPs must be in agreement as to legal separation. The legal status of each party will remain the same as during the marriage so you will not be able to remarry, for example.

There are no residency requirements if you file for legal separation.  You do not need to be a resident of the State of California for 6 months and a resident of your county for 3 months prior to filing of the petition like you do in a divorce. So, some people after just moving to California or county, choose to file for legal separation right away to then convert to a divorce action once the residence requirements are met.

There is no waiting period to obtain judgment of legal separation like there is in a divorce (6-month waiting period from the time petition is filed and served to the time judgment may be entered).

In a legal separation, you can resolve all issues such as: child custody and visitation, child support, spousal support, and division of assets and debts except your status will remain “married”. 

Judgment of legal separation is in no way different than in cases of divorce except it does not return the parties to their “single” status, so you cannot remarry.

What if down the line parties want to divorce?

If you obtain a judgment of legal separation and after some time want to divorce, you would have to file a new petition for dissolution of marriage and complete new financial disclosures.  There is also a mandatory 6-month waiting period to obtain your divorce.