10630 Town Center Drive, Suite 102
Rancho Cucamonga, CA 91730
Rancho Cucamonga, CA 91730
Couples considering ending their relationship often wonder whether they should file for divorce or legal separation. There are some very important legal differences between the two. Understanding these differences can help you make the best decision for your future.
Keep reading below to learn everything you need to know about divorce versus legal separation in California.
California is a “no-fault” divorce state. This means you do not have to prove that your spouse did something wrong to file for divorce. Most divorces are based on irreconcilable differences, although couples may choose to end their marriage for many personal reasons.
Common reasons people decide to divorce include:
A divorce begins when one spouse files a petition for dissolution of marriage with the court. The other spouse must then be formally served with the divorce papers and generally has 30 days to file a response.
California law requires a mandatory six-month waiting period before a divorce can be finalized. The waiting period begins on the date the responding spouse is served with the divorce petition, not the date the petition is filed.
During that time, the spouses may negotiate or resolve important issues such as property division, child custody, child support, and spousal support. Once the waiting period has passed and all required matters have been addressed, the court may enter a final judgment ending the marriage.
A legal separation is actually quite similar to a divorce in many ways. Requesting a legal separation in California starts with filing a petition in court. In fact, the same form is used for a legal separation action that would be used for a divorce. However, the “legal separation” box is checked instead of the “dissolution of marriage” box.
Once the petition is filed, a case is opened, and a judge is assigned. Just as in a divorce, the other spouse is served with the petition and has 30 days to file an answer. Unlike a divorce, there is no cooling-off period required for a legal separation. However, the court may enter a final judgment addressing issues such as property division, child custody, child support, and spousal support.
While these two actions are quite similar in many ways, there are important legal distinctions between them.
Some of the key differences include:
A divorce legally ends the marriage. A legal separation allows the parties to live apart, but they are technically still married from a legal perspective.
A couple that is legally separated might still be able to file joint tax returns and reap other tax benefits that a married couple may experience. However, you should always consult with a tax professional to make sure you are following the law.
An ex-spouse typically cannot receive benefits through your employer, such as health insurance. When a couple goes through a legal separation, this can present some challenges. Although spouses remain legally married, a legal separation may affect eligibility for certain employer-sponsored benefits, depending on the terms of the benefit plan.
Your spouse may automatically be the beneficiary of many of your accounts, such as an IRA, 401(k), pension, or savings account. A legal separation may also affect beneficiary designations, depending on the type of account and the terms of the separation agreement.
Before you decide to file for divorce or legal separation, make sure you understand the effects that each could have on your situation.
Whether divorce or legal separation is the better option depends on each couple’s goals, finances, and personal circumstances. An experienced family law attorney can help you understand the legal consequences of each option before you make a decision.
If you need help deciding between a divorce or legal separation, the team All American Law can help. We have over 30 years of combined experience and can help you understand the differences between divorce and legal separation so you can move forward with confidence.
Contact us today at 909-944-8880 to schedule an initial consultation with a Rancho Cucamonga family law attorney.
Visit our law office at:
All American Law
10630 Town Center Drive Suite 102
Rancho Cucamonga, CA 91730
