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Divorce vs. Legal Separation [2022 Differences in California]

Updated July 8th 2022

4 min read

The terms 'separation' and 'divorce' are often used interchangeably in conversation, but there are big differences in what happens. Learn the benefits and downsides of each in a few quick bullets.

Divorce vs. Legal Separation [2022 Differences in California]

Divorce vs. Legal Separation [2022 Differences in California]

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Tristan A

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When it comes to legal separations and divorces, there is a lot of confusion about the differences in these two options. In California, there are specific steps you must take in order to file for legal separation which are different than the steps for divorce. In this article, we will break down the differences between a legal separation and divorce in California, so that you can make an informed decision about which route is best for you.

A legal separation in California is filed with the court by one spouse and served on the other spouse. Once filed, the couple is legally separated and each spouse’s legal rights and obligations are established. The biggest difference between a legal separation and divorce is that a legal separation does not end the marriage. This means that you are still legally married, but you are living apart and have a legal agreement (approved by a family law court) in place that outlines your rights and responsibilities.

Why do people get Separated instead of Divorced?

There are a few reasons why couples may choose legal separation over divorce. For some, it may be a religious reason. In other cases, one spouse may not be eligible for health insurance through their job if they are divorced, but they would be if they were legally separated. There are also financial reasons why legal separation may be a better option than divorce. For example, if you are married, live separately, but decide to continue to file taxes jointly, you may benefit from certain tax breaks that you would not receive if you were divorced. Once you get divorced, you cannot choose to file taxes jointly. It's important to note that getting a legal separation does not mean you have to file taxes as "Married filing separately." In fact, doing that often leaves both parties worse off than filing jointly.

Benefits of Separation over Divorce

The most important benefits of legal separation are that it gives you time to decide if divorce is right for you and it protects your legal rights during that time. Examples of these legal rights include:

  • The ability to live in separate households while managing child custody rights
  • The ability to separate finances, assets, debts, and accounts
  • Spousal support (called 'alimony' in a divorce, this is called 'separate maintenance' in legal separation) can be negotiated and court ordered
  • Usually, the right to health insurance through your spouse’s job
  • The right to file taxes jointly and continue receiving tax credits and benefits (like Social Security) as a joint couple with higher income thresholds

Downsides of getting Separated instead of Divorced

Just like the upsides, the primary downsides of selecting legal separation rather than divorce vary state by state but often include factors like:

  • You cannot get remarried - the state will not allow you to get remarried to someone else until your original marriage is formally dissolved by divorce
  • You cannot file taxes as an individual - the IRS views you as married so you must file 'Married filing jointly' or 'Married filing separately'.
  • In some states, separation may be limited in time or require periodic refiling, or give you fewer rights
  • If you decide you do want to formally end the legal marriage later, you may have to go through more paperwork and time again

If you're trying to decide between getting separated vs. getting divorced, it would be beneficial for you to get professional legal advice from an attorney. You don't necessarily need to use an attorney to file the paperwork, but you do need to understand the differences and make an informed decision, because making the wrong decision could cost you significant time, money, and emotional distress.

The easiest and most affordable way to get legal advice on which one is better for your personal situation would be to talk to an attorney through a free legal aid clinic. These are non-profit organizations that employ attorneys to help people get legal advice without needing to pay an expensive retainer. They're often free, or have a small flat fee price to be able to conduct a phone call with an attorney.

Since laws are different state to state, you need to talk to an attorney licensed to practice in the state where you will file the divorce. You can use this government search engine to find a local legal aid clinic and contact them to get advice.

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