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Legal Separation vs. Divorce in California

If you are considering ending your marriage, you have options on how to proceed, specifically divorce or legal separation. Although similar, divorce and legal separation end with different outcomes. While a divorce permanently ends your marriage, a legal separation leaves it intact. However, with both, you and your spouse will enter into a court agreement that outlines your responsibilities and rights once you part ways.

The court agreement for legal separation and divorce covers much of the same issues, including but not limited to:

  • Child custody and support
  • Alimony
  • Asset and property division
  • Payments for marital debts

Why You Might Choose Separation Over Divorce

There are benefits to separating rather than divorcing. You and your partner may go this route if you want to:

  • Experience a “trial divorce.” Some couples view legal separation as a trial or “test divorce.” Before permanently ending their marriage, they use the separation period to evaluate whether the relationship can be salvaged or should be permanently ended.
  • Remain on your spouse’s healthcare plan. Many couples choose to separate rather than divorce so that one spouse can still benefit from the other’s healthcare. However, you should review the plan details to ensure that the coverage will still be eligible.
  • Continue filing your taxes jointly. If filing jointly has been beneficial to you and your spouse and you wish to continue these benefits, you can do so while separated; however, you cannot file jointly when divorced. If you and your partner choose to separate rather than divorce for tax reasons, you should consult with an accountant as state and federal tax laws are complex.
  • Retain certain military spousal benefits. During a separation, spouses can retain their military ID cards and benefits.
  • Respect your religious beliefs. Different religions have differing perspectives on divorce. While some view the dissolution of a marriage as an unavoidable reality, others believe a divorce is only an option in specific situations. Depending on your religious beliefs, you may opt to separate rather than divorce.
  • Get some space. Some couples still love each other and want to be in a relationship. Rather than end their marriage permanently, they prefer to live apart/separate lives.

Can You Be Legally Separated and Still Live in the Same House?

After they separate (or even divorce), some couples choose to continue living together. However, living together will affect the possibility of alimony as IRS guidelines restrict alimony payments for those who share a residence.

Legal Separation vs. Date of Separation

The date of separation is not the same as a legal separation. The date of separation is the date upon which the marriage was broken completely and finally. This date affects how property is divided, as property acquired up to the date of separation can be considered marital property.

Under California Family Code § 70, the date of separation is evidenced by:

  • One spouse sharing their intent to end the marriage with the other
  • The behavior of a spouse being consistent with their intent to end the marriage
  • Any evidence that the court deems relevant

How to File for Divorce or Separation in California

The process for filing for divorce or separation is very similar. You (or your partner) will file a petition with the courts, pay the filing fee, serve the other party with papers, and file final disclosures with the courts. However, there is no residency requirement to file for separation. Before filing, you should consult with an attorney.

Prepare for Your Divorce or Separation

Whichever route you choose, you should prepare for your case by:

  • Researching the upcoming legal process. During the proceedings, you and your partner will have to make important decisions that impact your future finances, visitation/custody rights, etc. Instead of waiting to deal with everything as it comes, take time to prepare yourself for what you may experience and be asked to handle.
  • Creating a list of your marital and separate property. California is a community property state, which means the marital property will be divided equally. You should have a list of your assets and debts (marital and separate) so you know what you (and your partner) have.
  • Considering what you want. Even after you decide whether to get a divorce or legally separate, you should also consider what you want in terms of your interests. It’s also important to understand how you want the proceedings to go. Do you want to handle everything via mediation? What do you think the best parenting plan would be? Asking yourself these questions ahead of time can ensure you’re prepared when they come up during the process.
  • Drafting a budget. Having an idea of your current, shared monthly expenses can help you better plan for what your financial obligations will be once you separate or divorce.
  • Identifying your support network. Getting divorced or separating can be extremely emotional; you shouldn’t try to face this process alone. Reach out to family and friends for support.
  • Breaking the news to your children. Discuss with your partner (if possible) how and when you want to share the news with your children. You should also prepare your children as to what things will change in their lives due to the separation or divorce.
  • Contacting our attorneys at Singleton Smith Law Offices. As mentioned earlier, you will need a support network, including a reliable attorney. Our divorce and separation attorneys are experienced and equipped to help you navigate your proceedings and protect your interests.

Our attorneys are prepared to help you navigate your separation and/or divorce proceedings. To schedule your free, initial consultation, contact our office online or by calling (951) 779-1610.