What Is the Difference Between Divorce and Legal Separation?

When you are dissolving your marriage in California, you may want to consider legal separation rather than divorce. Here’s why.

What is legal separation?

Legal separation is a court-approved separation, but the couple has not ended their marriage. Like divorce, it involves a legal process, which clarifies the rights and obligations of each individual, such as: child custody and visitation, child support, property division and spousal support. Because the marriage still exists, neither spouse can marry another individual.

What are the benefits of legal separation?

More time to think and plan – Spouses may need time to work through personal or financial issues before legally ending their marriage.

Higher social security and/or military benefits – By legal separating rather than divorcing, higher social security and military benefits can accrue for the lower income or non-military spouse.

Religious or personal beliefs – the couple or one spouse may have religious or personal views preventing or dissuading the dissolution of the marriage.

Health care benefits – Legal separation may allow for the retention of health care benefits, depending on the insurance carrier.

Medical and financial decision-making – Separated spouses are still considered next of kin for each other and can still make medical or financial decisions on behalf of the the other spouse.

Property rights remain intact – Legal separation preserves each spouse’s legal rights to property, upon the death of the other. This may be desirable when the couple co-owns a business or other property.

What is the down side of legal separation?

Inability to remarry – Because the marriage has not legally ended, neither spouse is free to marry another partner. Legal separation may just delay the inevitable.

Responsibility for debts and liabilities – Separated spouses may still be responsible for each other’s debt, where, in divorce, debts are handled during the dissolution process.

What is a trial separation?

A trial separation is an informal splitting of a couple. Unlike legal separation, it is purely a personal arrangement and does not require the approval of the court. A couple’s current obligations to each another and to their children continue as before. Any property or debt acquired during a trial separation is still considered likely marital property.
Learn more

If you are considering divorce and want to discuss whether legal separation may be a better choice in your situation, please contact our office for a consultation.

Attorney Christina Sherman is a Marin County CA family law attorney and Certified Family Law Specialist, specializing in divorce, child custody and support, marital contracts and other family law issues.

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