In California, legal separation and divorce are ways to separate your life from your spouse’s. You typically address the same issues in both processes, but they differ in important ways. The primary long-term difference in legal separation vs. divorce is the legal effect of each: when you get divorced, you are no longer married and free to remarry. When you get a legal separation, you are still legally married and cannot remarry.
Legal separation can move more quickly in the short term. In particular, the six-month waiting period that applies to divorce does not apply to legal separation.
Read on to learn more about legal separation vs. divorce in California. If you have questions or need assistance with a family law matter, including help deciding whether legal separation or divorce would work best for your family, contact the Stratte Law Firm.
How Does Divorce Work?
California law refers to divorce as “dissolution of marriage”. Divorce is the process through which you legally dissolve your marriage.
When a couple divorces, they typically address:
- Child custody and parenting time,
- Child support,
- Property and debt division, and
- Spousal support.
Divorce can generally be contested or uncontested. A contested divorce is one in which the spouses disagree on one or more applicable divorce issues. An uncontested divorce is one in which they agree on all applicable issues. When spouses agree on all matters, they can submit proposed terms for the court to approve.
How to File for Divorce in California
To file for divorce in California, California Family Code (“FAM”) § 2320 requires that at least one spouse must have lived in the state for at least six months and the county where they file for divorce for at least three.
A spouse files for divorce by submitting specific paperwork to their or their spouse’s local court, becoming the petitioner spouse. When they file, they must identify why they request the court to dissolve their marriage. California FAM § 2310 authorizes only two no-fault options: “irreconcilable differences” or one spouse being permanently incapable of making decisions for themself.
After the petitioner spouse files, they must have the respondent served. To serve the papers, the petitioner can hire a process server or have the sheriff where the respondent lives to deliver them. Once served, FAM § 2020 allows the respondent spouse 30 days to respond or waive their right to respond.
Both spouses must exchange detailed financial information in accordance with FAM § 2104 timelines. The petitioner must provide that information within 60 days of filing. The respondent must provide it within 60 days of being served.
California courts cannot grant a final divorce to spouses until six months after the respondent has been served or appeared in court, which typically means filing documents or attending a hearing. Regardless of the circumstances, the spouses cannot shorten this six-month waiting period.
Legal Effects of Divorce
After a couple is divorced, they are no longer married and have the right to marry again. Upon the granting of divorce, California Probate Code § 6122, and §§ 5600-5604, revokes certain beneficiary designations by operation of law, for example:
- Wills,
- Trusts,
- Retirement benefits,
- Powers of attorney,
- Pay-on-death or transfer-on-death arrangements, and
- Survivorship rights.
However, the laws typically do not cancel a beneficiary designation in favor of your former spouse in a life insurance policy.
Special Process: Bifurcation
In divorce cases, spouses can seek bifurcation, under FAM § 2337, to separate their status as legally married from issues they have not yet resolved by the time the six-month dissolution waiting period has elapsed. In other words, the spouses can ask the court to legally divorce them, making them free to remarry, while continuing their divorce case concerning issues like property division and custody. Bifurcation, in many ways, accomplishes the opposite of what legal separation does.
How Does Legal Separation Work?
In California, legal separation is a divorce alternative that does not dissolve the marriage. You remain legally married, but the court can still issue enforceable orders on:
- Child custody and parenting time,
- Child support,
- Property and debt division, and
- Spousal support.
A court order declaring a couple legally separated has the same legal power concerning each issue as a divorce order. Also, like divorce, legal separation can only be based on irreconcilable differences or one spouse’s permanent legal incapacity.
How to File for Legal Separation in California
To begin a legal separation case, one spouse must file documents with their local court or the local court where their spouse lives, just like a divorce. After a spouse files, they have three years to serve papers on the other spouse. Once they do, the same deadlines apply, including the respondent’s 30-day response deadline once they are served and the 60-day financial disclosure deadlines.
Yet, filing for legal separation in California varies in two essential ways. Unlike divorce, FAM § 2321 does not require spouses to have lived in California for a specific time period before they can file for legal separation. Legal separation is also not subject to the six-month post-filing waiting period for divorce because marital status is not dissolved.
Legal Effects of Legal Separation
After a court issues an order declaring spouses legally separated, they remain married, even though the order can separate virtually all other aspects of the couple’s lives. Yet, unlike a divorce judgment, legal separation does not trigger the Probate Code’s automatic revocation rules. So you should review and update estate planning, beneficiary designations, financial accounts, and joint property rights.
Some health plans allow legally separated spouses to remain on coverage, but this depends on plan terms.
Special Process: Converting a California Legal Separation into a Divorce
You can file for legal separation before you meet California’s divorce residency requirements. If you do, FAM § 2321 allows you to request that the court convert your legal separation case into a divorce case once you meet those requirements. In other words, once you have lived in California for at least six months, you can typically ask to convert a legal separation proceeding into a dissolution of marriage.
Legal Separation vs. Divorce
Ultimately, legal separation and divorce have significant overlap. They address the same topics but result in different legal outcomes. The timelines for each process also vary significantly.
Where Legal Separation and Divorce Overlap
Legal separation and divorce involve the same potential issues: dividing debts and assets, deciding how to care for the children, and deciding whether one spouse will pay the other spousal support. Spouses often resolve these issues similarly, particularly through negotiation, mediation, and separation agreements. Spouses negotiate to settle the terms of their separation and may attend mediation, where a neutral third party helps them work through remaining issues.
If the spouses agree on the resolutions to the issues involved in their divorce or separation, they can submit a written marital settlement or separation agreement for the court to review and, if lawful, adopt as an order.
For the court to approve the proposal, it must not:
- Unfairly divide property and debts,
- Establish child custody and parenting time that are not in the best interests of the child, or
- Attempt to set child support payments in an amount lower than California law requires.
As long as the agreement does not violate California law, both spouses voluntarily agree to the terms, and both sign the agreement, the court typically converts it into an official order, making their proposed terms legally binding.
Benefits of Legal Separation vs. Disadvantages of Divorce
Legal separation does not include the same residence or waiting period requirements as divorce. You can typically get legally separated more quickly than you can get divorced. You can also initially file for legal separation, work on resolving the issues between you, and convert the separation into a formal dissolution.
Depending on your priorities, other benefits of legal separation include:
- Retaining rights in estate planning and financial documents,
- The possibility of maintaining health insurance and similar benefits, and
- If opposed to divorce on religious or moral grounds, a way to separate their lives legally.
Divorce’s disadvantages also depend on your perspective and priorities. They typically include legally dissolving the marriage and the effects dissolution has on the family.
Disadvantages of Legal Separation vs. Benefits of Divorce
The primary disadvantage of legal separation is that you remain legally married. You cannot remarry; if you attempt to, you commit bigamy.
Legal separation also does not have automatic revocation of rights effects. You may need to take extra time to change estate planning and other legal documents if you do not want your spouse to benefit after legal separation.
Divorce, on the other hand, ends the marriage and typically triggers the Probate Code revocation rules, while allowing each party to move forward independently.
Whether Legal Separation vs. Divorce Is Best
Whether legal separation or divorce would work better depends on your family goals and priorities. The processes primarily differ in timeline and legal result. Legal separation does not have the same strict residency requirements and waiting period, but it does not legally dissolve the marriage. Divorce has strict requirements, but it officially dissolves the marriage.
If you are trying to decide whether legal separation or divorce would work best for your family, contact the Stratte Firm. As your attorney, we’ll guide you with a collaborative approach if you want a cooperative, problem-solving path; if your case involves high conflict, complex assets, or business interests, we’ll build a results-oriented strategy that protects your priorities and your children.
Let’s discuss what matters most to you and choose the path—legal separation or divorce—that best suits your family’s needs.
Resources:
Response time, California Family Code § 2020, link.
Financial disclosure requirements, California Family Code § 2104, link.
Grounds for dissolution or separation, California Family Code § 2310, link.
Residency requirements, California Family Code §§ 2320-2321, link.
Bifurcation, California Family Code § 2337, link.
Waiting period, California Family Code § 2339, link.
Revocation of transfer on death, California Probate Code §§ 5600-5604, link.
