Why Do Some People Get a Legal Separation Rather Than a Divorce in California?

If you are considering splitting from your spouse, you may have heard the term “legal separation” thrown around as an alternative to a “divorce” or “dissolution” (a “dissolution” is the legal term for the court’s action in terminating a marriage in marriage, thus “dissolution” and “divorce” basically mean the same thing for a layperson). Indeed, the “Petition” form that a person filing for divorce in California must file with a court to initiate a case gives the option of filing for either “Dissolution (Divorce) of Marriage” or “Legal Separation of Marriage” (the form also provides options for a “Nullity of Marriage” as well as options relating to domestic partnerships, but those are topics for another article!).

So what is the difference between a divorce or legal separation, and why would anyone pursue a legal separation when they could get divorced? Certainly, the number of people seeking a legal separation in California courts is small compared to those seeking a divorce, but there are legitimate reasons for doing so, a few of which are spelled out below. Also, keep in mind, an action for legal separation can be converted to an action for divorce by either party, and they often are as the action proceeds.

Legal Separation Provides Similar Protections as Divorce, But Without the Finality

Besides terminating a marriage and restoring a person to being “single” or “unmarried,” the legal ramifications of a divorce are that a court can make orders regarding the distribution of property between the spouses, custody and visitation of minor children, and the payment of child support and spousal support from one spouse to the other other. All of these orders are available to parties seeking a legal separation, the only difference being that a person who obtains a legal separation will remain legally married to the other party, and as a result neither party can marry another person while still legally married.

Thus, a person who does not wish to obtain a divorce can, via a legal separation, obtain legal protections such as:

  • A custody and/or visitation (including the requirement of monitored visitation) schedule for the minor children
  • Determination of which parent has the right to make important decisions regarding the children
  • An award of child support from the other parent
  • An award of spousal support from the other spouse
  • An award of property (e.g. real estate, financial accounts, vehicles, jewelry, etc.) to one spouse
  • A determination that the post-separation income of both spouses will be each parties’ separate property (as opposed to community property)

Some Parties Have Personal or Religious Reasons for Not Wanting a Divorce

There may be any number of reasons why a party might want a legal separation rather than a divorce. First off, one spouse may have reason to believe that the marriage can ultimately be saved in the future, but still want the above legal protections in the meantime, especially where one or both spouses may be going through a difficult situation that may not be permanent.

Other persons may have moral or religious objections to divorce, for example believing that divorce should either never be voluntarily pursued or only in specific scenarios not present in their own situation, but again want the legal protections of a legal separation.

In other cases, there may be more logistical reasons for remaining legally married, such as the ability to stay on the other spouses’ health care policy. Or, if neither party meets the jurisdictional requirements of having lived in the County for the past three months and in the State of California for six months, they might opt to file a legal separation rather than dissolution.

In all cases, the client should be reviewing whether they will be exposed to any creditors of the other spouse. Even worse yet, if the spouse is contemplating or at risk of filing a bankruptcy action. Legal and accounting advice should be sought to address these concerns.

Your reason for pursuing a legal separation over a divorce will likely not be of significant concern to the court, and, as with a divorce, you do not have to prove “grounds” or “fault” in seeking a legal separation. By that same logic, however, if you wish to pursue a legal separation, but your spouse would, all things considered, rather no longer be married, he or she will have the right to supersede your pursuit of a legal separation by asking the court for a divorce.

Guidance on Your California Family Law Questions From a Westlake Village Family Law Attorney

If you would like to learn more about how our office can provide guidance on any California family law issues you are facing in Ventura County or Los Angeles County, contact the Zonder Family Law Group office today at (805) 777-7740 or (818) 877-0001, or schedule your strategy session using easy-to-use online form here.