In California, divorce and legal separation are both legal processes that allow married couples to formally end their marriage or live apart, but they have significant differences in terms of legal outcomes, rights, and responsibilities. Here’s a breakdown of the key differences between the two:
1. Definition and Outcome
- Divorce (Dissolution of Marriage): Divorce is the process that legally ends a marriage. When a divorce is finalized, the couple is no longer married, and they are free to remarry if they choose.
- Legal Separation: Legal separation is a process where a married couple lives apart and resolves issues like child custody, child support, spousal support, and property division, but they remain legally married. The couple is not free to remarry, as the marriage has not been dissolved.
2. Marriage Status
- Divorce: The divorce legally terminates the marriage, and the spouses are no longer married. They are free to remarry.
- Legal Separation: In a legal separation, the couple remains legally married, even though they live separately and may resolve issues related to their finances and children. They cannot remarry unless they go through the divorce process to dissolve the marriage.
3. Property Division
- Divorce: In a divorce, the court divides the community property (assets and debts acquired during the marriage) between the spouses. Each spouse has the right to their separate property (property acquired before the marriage or through inheritance/gift during the marriage).
- Legal Separation: In a legal separation, property division can also occur. However, because the couple remains married, they don’t officially divide the property until divorce proceedings begin. Some couples may use legal separation as a way to live apart while still keeping their property ownership intact.
4. Spousal Support (Alimony)
- Divorce: The court can order spousal support (alimony) in a divorce, either temporarily during the divorce proceedings or as long-term support after the divorce is finalized. The amount and duration depend on factors like the length of the marriage, the standard of living, and the spouses’ financial circumstances.
- Legal Separation: The court can also order spousal support in a legal separation, just as it can in a divorce. The terms of spousal support in a legal separation may be similar to those in a divorce, but since the marriage is not dissolved, the paying spouse cannot remarry unless they later proceed with divorce.
5. Child Custody and Support
- Divorce: Divorce allows for the final determination of child custody, visitation, and child support arrangements. Once these decisions are made, they are part of the final divorce judgment.
- Legal Separation: In a legal separation, the court can also make determinations about child custody, visitation, and child support. These decisions are temporary but can be long-term until the couple either reconciles or pursues divorce.
6. Health Insurance and Benefits
- Divorce: After a divorce, spouses generally lose the right to stay on each other’s health insurance plans (unless they have a specific agreement). If a spouse was covered under the other spouse’s employer health plan, they might need to seek their own coverage.
- Legal Separation: In a legal separation, spouses remain married, so they may still be eligible for each other’s health insurance benefits. This is one reason some couples may choose legal separation, particularly if they want to maintain access to each other’s health insurance.
7. Tax Status
- Divorce: After a divorce, each spouse must file taxes as a single or head of household (if applicable). The spouses are no longer considered one tax unit.
- Legal Separation: Spouses who are legally separated must still file taxes as married unless they have lived apart for the last six months of the year, in which case they may file as “separated” or as head of household (if they qualify). However, they are still considered married for tax purposes and may have joint tax obligations.
8. Remarriage
- Divorce: After a divorce is finalized, both parties are free to remarry. The marriage is legally dissolved, and they are no longer connected in any marital sense.
- Legal Separation: In a legal separation, the couple remains married, so neither spouse can remarry. If they want to marry someone else, they must proceed with a divorce.
9. Reconciliation
- Divorce: Once a divorce is finalized, the marriage is ended, and the couple cannot reconcile unless they remarry, which requires a new marriage license.
- Legal Separation: In a legal separation, reconciliation is possible without the need for remarriage. The couple can choose to live together again and continue their marriage without the formalities of a new marriage license or ceremony.
10. Reasons for Choosing Legal Separation Over Divorce
- Some couples choose legal separation instead of divorce for several reasons:
- Religious Beliefs: Some religions do not allow divorce, so legal separation may be the preferred option.
- Financial Reasons: Legal separation allows couples to live apart, divide finances, and get legal protection without dissolving the marriage. This might be beneficial for health insurance or retirement benefits, among other reasons.
- Possibility of Reconciliation: If a couple is unsure whether they want to divorce but needs to live apart, legal separation provides a way to formalize the separation while still allowing for the possibility of reconciliation.
11. Residency Requirement
- Divorce: To file for divorce in California, at least one spouse must have been a resident of the state for six months and of the county where the divorce is filed for three months.
- Legal Separation: California has no specific residency requirement for legal separation, so a couple may file for legal separation even if they do not meet the residency requirements for divorce.
Conclusion
- Divorce is the legal dissolution of the marriage, where both spouses are no longer married, free to remarry, and the marriage is legally terminated.
- Legal Separation allows a couple to live apart and settle issues such as property division, spousal support, and child custody without ending the marriage. They remain legally married and cannot remarry unless they pursue a divorce later.
Couples who are unsure about whether to divorce or legally separate may choose legal separation as a temporary solution, with the option to convert it into a divorce later if desired. However, if the goal is to completely end the marriage, divorce is the definitive legal process.
