• Tracy Duell-Cazes

What is the difference between legal separation and divorce?

Updated: Nov 22, 2021


If you have reached what you believe to be the end of your marriage, depending on your circumstances you may choose to either legally separate or file for divorce. The difference between the two is simple. When legally separated, regardless of living or financial arrangements, you are still married. This means that both parties have chosen not to terminate their marital status and are not legally free to marry someone else.


Ending this important relationship can be heart-breaking and/or infuriating, depending on the circumstances behind it. You may have some hope of salvaging it peaceably before it comes to divorce. Legal separation may seem less drastic, while divorce really represents the death knell to a part of your life. Legal separation does NOT mean your marriage is over while divorce emphatically does. If you find out you want to stay married AFTER the divorce papers have been finalized, you will have wasted a great deal of time and money needlessly. This is why some couples can remain legally separated from months to years!


There are quite a few other practical reasons that a couple might choose to file for separation as opposed to divorce. Among them are religious beliefs, familial obligation, or financial entanglement. If neither ex is interested in pursuing a new relationship outside the marriage, putting off the actual divorce may seem like a way of easing into the more permanent legal status. Whatever your reasons for separating, it is essential to protect yourself upfront and have all the necessary issues settled and agreed to in writing. These include division of assets, the responsibility of debts, spousal support (alimony) amounts, etc., issues that will eventually have to be addressed once you have filed for divorce.

In addition to these considerations, in California, there is the added advantage of hastening the divorce process by first filing for legal separation. The reason for this is that California, a no-fault state, does not allow for legal separation unless BOTH spouses agree to that route or one spouse defaults after having been served with the petition. According to Legal Separation VS. Divorce in California, by Beverly Bird, “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.”


The requirements to file for legal separation are not as restrictive as they are for a divorce. In order to file for divorce in a certain California county, you must reside in that county for at least three months and in California for at least six months immediately prior to filing the court papers. This is not the case in a legal separation, which has no time restrictions, which means you can file your paperwork with the Court right away which will result in a shorter time to finalize the case if you want to file in your new County of residence. You can file the separation petition immediately, and then later amend that Petition to divorce once you have lived in that county for the required time. The three/six-month requirements begin from the moment you file that first Petition for Legal Separation.


So many news articles today seem to favor legal separation over divorce for financial reasons, but they don’t take into consideration the long-term emotional effects of living in that limbo state of not being part of a married couple while still technically being married. How can you move on, from a situation that obviously didn’t work, towards a new life without actually ending that situation? Do you want to eventually meet someone else? How will you explain the situation of not being able to fully commit to them because you are still married to someone else? Even if this past experience has soured you on the whole concept of matrimony, being labeled a “technical cheater” is perhaps not the best face you want to show to a prospective partner of any kind. And the most harmful side effect to staying perpetually separated, if you have children, is the hope you are unconsciously giving them that their parents might get back together and reassemble the family they remember through rose-colored glasses. Finalizing that divorce may be just the signal everyone needs to adjust to the new reality.

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