Legal Separation vs. Divorce

If you are thinking about or have reached the decision that your marriage is over, you may be wondering how to end your marriage.  You have three options: You may informally separate, file for a legal separation, or file for a divorce. When we talk about separation, this is different from Legal Separation.  In order to state you have separated from your spouse, you do not need to file for Legal Separation. Informally separating requires that you merely expressed to your spouse that the marriage is over and you have taken actions that are consistent with this.  This does not require that you live in separate houses, but your actions should demonstrate that your romantic relationship has ended and your family and friends should be aware that the marriage is over.  

Legal Separation is a formal process filed with the court and is an alternative to filing for Divorce.  

So what is the difference between a Legal Separation and Divorce?

With Legal Separation, you can obtain all the same orders as in a Divorce (i.e. custody, division of assets, support).  The difference between a Legal Separation and a Divorce is that with a Legal Separation you remain legally married to the person and are not returned to the legal status of a single person.  This means that you cannot remarry.

So why would someone choose Legal Separation over Divorce?

Legal Separation may be a good option for you if you are concerned about losing insurance coverage or have immigration issues at play.  Additionally, a Judgment of Legal Separation can affect your estate planning and other rights of survivorship since most Judgments will cancel the rights to testamentary and nonprobate transfers which occur naturally by operation of law.  Therefore, you will want to make sure you review all those documents and benefit plans to be certain they reflect whatever agreement you and your spouse desire.  

What is the filing requirement differences?

In order to file for Divorce, also referred to as dissolution, there is a residency requirement to file in a specific courthouse.  Separation does not have a residency requirement.  So, in order to file for a divorce in any County, you must have been a resident of the state of California for six months prior to filing the Divorce and a resident of the specific county you are filing in for three months prior to filing the Divorce.  If you do not meet the residency requirements to file in the specific county, you can file for legal separation initially as there is no residency requirement for legal separation.  Often times, parties may file for legal separation and later amend the request for divorce to meet the residency requirements.  

If you would like to discuss whether you should file for Legal Separation or Divorce, call Moore Law for Children to schedule a consultation with an experienced family law attorney to discuss your goals and strategies regarding this and your other family law matters. 

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