Is Legal Separation a Kinder, Gentler Option to Divorce?

By Matthew Moore, CFLS

Is legal separation a kinder, gentler option to divorce? In a word: No. But this is such a common misperception that it’s worth a fuller explanation. 

Life is full of uncertainties. And the decision to divorce a spouse is among the most grave and stressful decisions someone can make. So it is natural to want do something a little less than divorce. And it’s also natural to believe that Legal Separation in California is that something. But it is not. 

Legal Separation is an option under California Law whereby the parties undertake full divorce proceedings, including the characterization and division of property, the establishment of support (as appropriate), the determination of child custody, and the provision of attorneys’ fees. The proceeding ends with a Judgment of Legal Separation

But when it is all over, you are still technically married. Even though you have divided your financial estate, you must still file your taxes as “married” and neither of you may remarry. 

That’s right. After a proceeding for legal separation, you will have divided up your property and your money. You will have entered orders for child custody and support, and you may even have spousal support orders entered. But you remain legally married to your spouse. This is not what most people think of when they say to themselves: “I’m not sure I want a divorce – I might just ask for a legal separation.” 

It’s not what many of us think it is. But Legal Separation does serve some purposes. 

For one, there is a residence requirement in California that says a party must live within the state for six months and the county in which they filed for three months before filing for divorce. But that requirement does not apply to Legal Separations. So a party could move to California and immediately file for Legal Separation. This was intentional. We are so proud of our family law rules in California that we make it easy for people from other states to come here to get divorced. And anyone can do so — but if they want to file for divorce within six months of moving into the state, they need to start with a Petition for Legal Separation. Then, when they have satisfied the residence requirements, they can easily convert their Petition for Legal Separation into a Petition for Divorce. 

The other main reason to choose Legal Separation over divorce is because it is important to you, for religious or personal reasons, or for insurance coverage purposes, to remain married.

Sometimes a party with a  preexisting medical condition who has been covered on their spouse’s insurance may find it impossible to secure alternate medical coverage. In that case, it could be appropriate to remain married to stay on the insurance. And of course, there are plenty of folks who are barred by their religious beliefs from getting divorced. In those cases, Legal Separation provides all the trappings of divorce (property division, support, custody provisions, etc.) but they are still married in the eyes of the law. 

Our experience has been that most parties who consider legal separation decide against it. One reason for this is that if parties get a Judgment of Legal Separation and then later decide to Divorce, there is not a quick post-judgment way to dissolve marital status. They must re-file for divorce, including another set of hefty filing fees. Another reason is that by the time parties have gone through the financial disclosures and negotiation, characterization, and division of their estate, they’re more interested in making a clean break from their spouse and prefer to start a new chapter in their life as unmarried. But every marriage is different and every separation is different. And mediation is a great venue in which to make a thoughtful, family-oriented determination about how to proceed in your matter. If you’d like to learn more about how family law mediation can help you control the outcome of your divorce, click here