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Divorce vs. legal separation in California

On Behalf of | Aug 18, 2022 | Divorce |

If your marriage is not working despite your best efforts, you can choose between filing for divorce or legal separation. Each of these options has its own advantages and disadvantages. A family law attorney in your area can help you decide what to do based on your circumstances.

Divorce

Filing for divorce essentially means that you have accepted that your marriage is over for good. Divorce is essentially a permanent legal separation. Once it is finalized, you become legally single and have the freedom to remarry. However, you may have to give up certain advantages. For example, you may longer be able to use your partner’s health insurance, file joint taxes, or receive certain governmental benefits.

Residency requirements for divorce

If you would like to file for divorce in California, you must first meet the residency requirements. You or your spouse must have lived in California for at least six months before the date one of you files for divorce, and you or your spouse must have lived in the same county where you filed for at least three month prior to the filing date.

Legal separation

If you are not ready to permanently end your marriage or you would like to maintain your marital status for other reasons, legal separation may be the best option for you. Under California Family Code Sec. 2310, legal separation may be granted based on “irreconcilable differences that have caused a breakdown of the marriage” or “incurable insanity.” The court must issue a legal separation judgment, through a court order, which will:

  • Divide assets and debts
  • Allow couple to live separately
  • Determine child custody arrangements and child support
  • Address alimony

Legally separated spouses may not remarry, as they are still legally married. If you choose to reconcile with your spouse after a legal separation, you will file a motion to vacate order of legal separation to officially end the separation.

Residency requirements for legal separation

The only residency requirement for legal separation in California is that you or your spouse is a resident of California at the time of the filing. Couples who do not meet the residency requirements for divorce in California may choose to legally separate until they meet those requirements.

Separating from your spouse can be difficult, no matter whether you are divorcing or legally separating. An attorney in your area can walk you through the process and advise you every step of the way.