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What is the difference between divorce and legal separation?



Divorce and Legal Separation

If you are married in California and find your relationship is breaking down with your spouse, you have different options as to how you wish to deal with your marital relationship. Whilst many will seek a divorce, and some may be able to seek an annulment of the marriage, legal separation is an additional route available for residents of California.

What is a divorce in California?

A divorce is the complete dissolution of the marriage meaning that the marriage will permanently end, and you are able to legally remarry. In order to file for a divorce in certain counties, you must have resided there for at least 3 months.

California adopts a ‘no-fault’ divorce which allows either spouse to apply without having to prove the other spouse did something wrong. This can remove a lot of unnecessary stress in an already emotionally straining process. Instead, if seeking a divorce, you would need to state that you are unable to get on with your spouse otherwise known as ‘irreconcilable differences’.

Also, if one spouse does not want a divorce, the other may still apply as it is not necessary for both to agree to end the marriage. The proceedings will not end because one spouse does not want a divorce, instead the spouse wishing to get a divorce will be able to get a ‘default’ judgment.

During divorce proceedings, you will need to decide with your spouse how to deal with custody if you have children, how to divide finances, and any property.

What is a legal separation in California?

A legal separation does not permanently end the marriage, it allows you to divide all your assets and deal with child custody, but you are not allowed to remarry or enter into a domestic partnership.

There are many reasons you may decide to opt for legal separation over a divorce in California such as; your religion, insurance concerns or you may not be ready to fully dissolve the marriage and see a possible resolution in the future.

Furthermore, as mentioned previously, if you have not resided in your county for at least 3 months, you might be unable to obtain a divorce, but a legal separation has no time limits.

The process is the same as a divorce, as in both you are filing the same petition with the family court. You will need to complete the form having ticked the box for either dissolution of marriage for a divorce or legal separation.

More information on the actual process of filing can be found below.

Differences between divorce and legal separation

A divorce completely ends the marriage, whereas with a legal separation you are still technically married.

Bearing in mind the above, you can remarry with a divorce, but you cannot remarry or enter into another domestic partnership with a legal separation.

If you obtain a legal separation and decide you want a divorce, you can file for one after. But you cannot obtain a divorce and then decide you wish to reverse this to a legal separation.

You must have resided in certain counties for a specific period of time to file for a divorce, but there are no time restrictions on when you can apply for a legal separation.

Why choose a legal separation and not seek a straight divorce?

Choosing between a divorce or a legal separation is an entirely personal one for you and your spouse to make. Some may be confused as to what the advantages of seeking a legal separation over divorce are, but these are a few examples:

  • It can give you and your partner a chance to reconcile after having a period of separation, as the marriage status remains.

  • You may have religious reasons for not wanting to divorce and wish to remain legally married.

  • It could make more financial sense to remain legally married rather than divorcing if one of you is financially unstable.

  • You could continue to benefit from federal tax break which exists for married couples.

  • All of the same issues are considered within a legal separation as covered in a divorce.

  • After 10 years of marriage, if one spouse is entitled to the other’s social security benefits, this amount will increase.

A brief overview of filing your case for divorce or legal separation

Make sure you make at least 2 copies of all the forms mentioned throughout this piece!


1) Fill out the court forms which are the same for both proceedings –

  1. Petition Form FL-100 - where you need to provide some basic information to the court and ask for the orders you want.

  2. Summons Form FL-110 - which contains important information on the process for divorce or legal separation.

  3. You might need to fill in local forms for certain courts. You can find out if this is necessary by checking your local court’s website or by contacting the court directly.

  4. There are also other forms you may need to fill out dependent on your situation such as a Property Declaration FL-160 form if there is not enough room in the petition to list all of your property and debts.

2) You will need to file all the above forms with the court clerk including both the original and any copies. Once they have been checked for any obvious errors, they will be stamped ‘Filed’ with the copies returned back to you.

You will need to pay a filing fee, however, if you are unable to make this payment you can ask for a fee waiver.

3) You will need to make your spouse aware of the filing by providing notice. This can be done by your spouse signing the forms, being legally served court papers, or proper legal notice being published if you are not able to locate your spouse.

4) You will then need to wait 30 days for your spouse to respond and ask for any temporary orders that are necessary for a child or spousal support.

5) If you did not complete all the financial disclosures with the petition, you will need to ensure these are filled in no later than 60 days after the petition was filed. These forms will need to be served on your spouse and the Declaration Regarding Service of Declaration of Disclosure Form FL-141 will need to be filed with the court.

6) The next step will depend on whether your spouse disagrees with any part of your petition. If there are no disagreements, a judgment will be made. If there are, you will likely need to dispute these through the court process and a judgment will be made. You will receive a certified copy of the judgment.

For a divorce in California, there is a 6-month waiting period from the date the petition was filed to the final judgment.

More detailed information on the process and all required forms can be found on at http://www.courts.ca.gov/selfhelp-divorce.htm

Key Tips

  • Plan ahead! You need to think about how you want to handle your case. It might be a good idea to seek the advice of a lawyer, especially where you will be disputing assets or child custody.

  • Make sure when filing your case, you select the right county!

  • It is a good idea to get someone to review your forms to ensure they have been filled in correctly especially as all the information provided will also need to be accurate.

  • Remember that the court does not favor the person filing for divorce simply because they put the application in.

  • If you wish to file for a divorce after a legal separation any judgments already made on issues will still stand, the proceedings will simply be to remove the married status.

  • If you get a legal separation and plan to do this on a long-term basis, you should strongly consider getting a separation agreement in place to protect your interests.

It is important to ensure that if you are considering getting a legal separation or a divorce in California, you make an informed decision by researching both or seeking the assistance of a lawyer. It can be a very difficult process for many without even considering the legal aspects.

Independent Legal Solutions is a legal document preparation service, which provides a low-cost alternative to those who are self-represented.

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