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What’s the Difference Between Legal Separation and Legal Divorce in California?

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Many people are not aware that there is an option other than divorce for couples considering ending their relationship without the finality of divorce. This option is legal separation.

What is Legal Separation in California?

In California, you can get a legal separation from your spouse by filing a request in family court. Being legally separated is a different legal status from being divorced or married. You’re technically no longer married but you’re not divorced either and you can’t remarry again. The court’s order granting the legal separation includes orders about property division, spousal support, and child custody and support – just as a divorce would without the finality of a divorce.

Because it can significantly affect how your property and money are divided, the date of separation becomes a point of issue that couples argue over during the divorce process. It’s important to note that moving out of the family residence without an expectation of return will likely determine your legal date of separation.

What Happens to the Assets and Debts of a Marriage After a Legal Separation?

Legal separation has an impact on how a couples’ assets and debts are identified. Prior to a legal separation, all assets and debts in a marriage are considered community property. However, once there is a legal separation, all of the assets and debts after the legal separation are considered separate property. This is important because the assets and debts incurred after separation are generally not subject to equitable division as would property that is identified as community property.

Why Would Someone Choose Legal Separation in California Instead of Divorce?

Some people choose legal separation instead of divorce because of religious beliefs or maybe because one spouse wishes to keep the benefits of health insurance that he or she may lose with a divorce. Some other reasons people get legally separated is to give separation a “trial run” before actually moving forward with the divorce process. This is a time where couples will typically try to engage in therapy or couples’ counseling to determine if the issues that resulted in separation can be resolved. Significantly, some couples may choose the route of legal separation if they wish to protect themselves from any further accrual of debt if one partner is mismanaging money.

How is the Process of Legal Separation Different Than Divorce?

Many people are surprised to hear that the process of legal separation is very similar to that of divorce. The same judicial counsel forms are used to file with the court where individuals dictate what specific day they were legally separated and which assets are designated to each spouse. The main difference is that there is no final divorce judgment which permanently alters the legal relationship of the couple.