How to Start a Legal Separation in California—And why you might choose it over divorce

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You’ve been trying hard to solve the problems in your marriage, but it still isn’t working out. You feel like you’re ready to live separate lives, but (for any number of reasons) you’re not prepared for the permanence and finality of divorce or to ultimately end your status as a married person. Something needs to change.

If this is the situation you find yourself in, consider a Legal Separation.

Legal separation in California is similar to divorce in many ways. A Judgment of Legal Separation is a court order that allows you and your spouse to live separately officially, providing a formal and legally binding structure for doing so. It is “no-fault,” meaning you don’t need grounds other than irreconcilable differences. Like a divorce decree, legal separation establishes the division of property, child custody/visitation, and spousal/child support. Similar to divorce, spouses can enter into a separation agreement they’ve worked out themselves —ideally through mediation and with the advice of attorneys—or allow the court to make these critical decisions.

There are also crucial differences between divorce and legal separation. Unlike divorce, a legal separation does not terminate your marital status—when the process is complete, you are still legally married. You are not free to remarry while legally separated, only after a divorce is final. While a Judgment of Dissolution of Marriage is permanent and cannot be undone, a legal separation can be dissolved if you decide to get back together.

Legal separation is an alternative to divorce that may be short- or long-term and may end in divorce or reconciliation. Despite some common misperceptions about legal separation, it is not a mandatory step to divorce, nor does it necessarily lead to divorce. If you do decide to go through with a divorce after legal separation, it will be a new case and process.

There are numerous reasons why spouses may opt for legal separation instead of divorce:

Time and space—Some couples need a period of living apart to decide whether they’re ready to end the marriage or want to keep trying to reconcile.

Religious beliefs—Certain faith traditions prohibit divorce.

Emotional or familial reasons—Some people don’t want to go through a divorce while they have minor children. Others don’t like the idea of being a divorcee or are concerned about stigma in their social circles. It’s a profoundly personal decision.

Financial concerns—Preserving “married” status may have far-reaching economic impacts, including allowing spouses living separately to keep or continue to share certain benefits, such as Social Security, retirement, tax status, military benefits, health insurance, life insurance, and so forth.

Other practical matters—A legal separation has no waiting period in California, while a divorce has a mandatory six-month “cooling off” time. In addition, legal separation has no residency requirement, but divorce does. A California divorce requires that at least one partner be a legal resident of California for six months and at least three months in the county where they’re filing. For a legal separation, one spouse must be a legal resident, but there is no time condition. For this reason, some couples who already know they want to divorce but have not yet met residency requirements choose to begin with a legal separation.

Next Steps

If you’ve determined that legal separation is the right choice for you, at least for now, you will go through a similar process to divorce.

  1. Either spouse can initiate the separation.
  2. Submit a petition to the court. On the forms, you will check the boxes for legal separation.
  3. Pay the filing fee to the court clerk.
  4. After your petition is processed and approved by the court, you will officially serve the petition to your spouse, who must respond within 30 days.
  5. Negotiate your separation agreement through mediation or with the counsel of a qualified family law attorney. If you cannot settle on the terms of an agreement, a court hearing will be scheduled.

It can be challenging for spouses already on the brink of divorce to work together to create a fair, reasonable, mutually satisfactory, and legally valid separation agreement. It’s important to know that these decisions have serious legal ramifications. The skilled and caring family lawyers at SFLG can help you protect your rights as you navigate the crucial logistics of the legal separation process—and divorce if you eventually proceed—so you can move on with your new life as smoothly as possible.

By Debra Schoenberg

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