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Legal Separation and Divorce: The Differences

by Steve Fritsch on December 11, 2014

Legal separation and divorce both create a world where a couple lives apart. In both, either the husband or the wife initiates a court proceeding. The couple’s assets are divided, child custody is settled and one spouse may be required to pay alimony or child support to the other.


But a couple that is legally separated remains married, while a divorce formally ends the marriage.


What is a Legal Separation?


When one spouse moves out of the family home, the couple may consider themselves separated. They may even work out a separation agreement that divides up their belongings and specifies where their children will live. But this is not the same thing as a legal separation.


A legal separation is a court proceeding – just like a divorce – that’s initiated by one spouse filing a petition for legal separation in the county where the couple lives. As in a divorce, the parties may reach agreement on division of their property, child custody, and spousal and child support, or a judge may determine these things.

At the conclusion of a legal separation case, the husband and wife are still legally married, but they no longer share assets or a home. Because they are still married to each other, neither spouse can marry anyone else.

Why Choose Legal Separation?

While most couples that split up get divorced, couples sometimes choose a legal separation, either temporarily or as a final result in their case. Common reasons for choosing legal separation include:

  • You love one another and don’t want to divorce, but you feel it’s best if each of you manages his or her own life.
  • You want to end the relationship but you can’t divorce for religious reasons.
  • One spouse wants to continue to receive insurance or military benefits based on the other spouse’s employment.
  • You are close to the 10-year marriage period for receiving social security benefits based on your spouse’s earnings.
  • You don’t yet meet the residency requirement for divorce. You or your spouse must have lived in California for the last six months and in your county for the last three months before you can file for divorce. There is no residency limitation for filing a legal separation. Some couples file a petition for separation and then convert it to a divorce petition once they’ve satisfied the residency requirement.

The “separation vs. divorce” question can become quite complicated if you’re considering separation to preserve military or insurance benefits or for tax reasons. And because a legal separation involves all the same issues as a divorce, it can be just as complex and contentious. For these reasons, it’s important to contact a family law attorney as soon as you know that divorce or separation is a possibility.

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