What is the Difference Between Divorce and Legal Separation?

What is the Difference Between Divorce and Legal Separation?

Ever wonder what the difference is between divorce and legal separation? Here are five things that you need to know before you make any decisions:

(1) Legal separations take effect immediately. In comparison, California law requires a mandatory waiting period of six months in order to get a divorce. This means that the divorce process will take at least 6 months from the date of service of the summons and petition and the termination of the marriage. Of course, your divorce can take longer, but California’s mandatory waiting period means that it cannot be faster than 6 months.

(2) Legal separations don’t end the marriage. When you get legally separated, you live apart but you remain legally married so you cannot marry or enter into a partnership with someone else. In contrast, divorce ends your marriage or domestic partnership so that you effectively become single, and able to marry, again. In effect, legal separation gives you time away from each other to decide if you really want to get a divorce. But be careful – filing for legal separation is not something to take lightly because most legal separations result in divorce.

(3) You can use mediation to reach a separation agreement. Mediation is not just for when you are getting divorced and need to resolve issues for your divorce settlement. You can also use mediation if you are getting separated and need help reaching agreement on issues like child custody and visitation, child support, spousal or partner support, and the division of assets and debts.

(4) You don’t need to meet California’s residency requirements to file for legal separation. In order to get a divorce in California, either you or your spouse must have lived in California for the last six months and the county where you plan to file for divorce for the last three months. So what happens if you don’t meet the residency requirements and you cannot wait to get the process started? If you don’t meet the residency requirements to file for divorce, you can still file for a legal separation if at least one of you is living in California. And then once you meet the residency requirements for a divorce, you can simply file an amended petition and ask the court for a divorce.

(5) Automatic restraining orders are effective once the respondent is served. Another reason people consider legal separation an attractive option is because automatic restraining orders (e.g., against disposing of property and changing insurance beneficiaries) are effective once the respondent is served. So an early filing for legal separation may protect the petitioner from the respondent’s dissipation of assets.

If you’re considering divorce but not quite sure whether you are ready for complete closure, you may consider legal separation to be an attractive alternative. But be careful – if you end up deciding to get a divorce, the legal separation agreement may be used to determine the divorce settlement agreement. Whatever decision you make, be sure you have reflected on the repercussions of any plan of action you move ahead with. To learn more about the differences between legal separation and divorce, or to figure out what is the right decision for you based upon your specific circumstances, contact us today for a free initial consultation.

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