Most couples receive no real benefit from a legal separation rather than a divorce. It’s generally only suitable when your relationship has deteriorated to the point where you no longer want to be married but, for personal reasons, divorce is not an option. In California, however, there may be one other advantage. If time is of the essence, you can hasten the divorce process by filing for a legal separation first.
Legal separation is not an option in California unless your spouse agrees to go this route or he defaults after you have him served with your petition. This means he must either refuse to participate in the process, allowing it to proceed without objection, or file a response to your petition, consenting to the legal separation. Otherwise, you have no choice but to file for divorce instead.
Read More: Marital Status: Difference Between Separated & Divorced
California is a no-fault state, and both a legal separation and a divorce require the same grounds. You must choose between irreconcilable differences or the incurable insanity of your spouse. The similarities between filing requirements end there, however. You must have lived in the state for six months before you file for divorce, but there is no such residency requirement for a legal separation. After you file for divorce, you must wait an additional six months before your divorce can be final, but there is no waiting period for a legal separation.
Filing for a legal separation is no less complicated than filing for divorce. The two procedures follow an almost identical course, from serving the petition to disclosing the full details of your finances to the court and your spouse. In both cases, you can enter into a settlement agreement resolving the issues of your marriage or the court can decide those issues for you in a trial. California’s legislation does provide for a summary divorce, however. This option is much simpler than either a separation or regular divorce. You might qualify if you have no children, own no real estate, have limited assets and debts and have been married for five years or less.
A decree of legal separation addresses the same things a divorce decree does, including support paid to either spouse and for any children of the marriage. Both resolve issues of custody, visitation and property distribution. The terms of each are binding. The most significant difference is that a legal separation does not end your marriage. You can remain on your spouse’s health insurance policy, if necessary, and you can’t remarry.
California law allows you to convert your legal separation to a divorce after your separation is final or at any point during the legal process. Either spouse can file a request with the court, asking for the conversion. Although this requires additional paperwork, if you’re in a hurry to get your divorce moving along but have not established residency yet, you can file for legal separation immediately. The six-month waiting period for a final divorce decree begins ticking down as you work through the legal separation procedure. When it has expired, you can file to convert your matter to a divorce.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.