Legal separation and divorce are similar. Legal separation is sometimes preferred for personal reasons, if divorce is not an option. Sometimes there can be benefits to filing a legal separation first, before the dissolution of marriage (divorce). We can discuss your personal options.
Legal separation is not an option in California unless your spouse agrees to go this route or he defaults after you have him served with your petition. This means he must either refuse to participate in the process, allowing it to proceed without objection, or file a response to your petition, consenting to the legal separation. Otherwise, you have no choice but to file for divorce instead.
The grounds for legal separation and divorce are the same. California is a no-fault state, and both a legal separation and a divorce require the same grounds. You must choose between irreconcilable differences or the incurable insanity of your spouse. The similarities between filing requirements end there, however. While filing for divorce requires you to have lived in the State of California for at least six months prior to filing for a dissolution of marriage, there is no such residency requirement for a legal separation. Also, a divorce requires an additional six-month waiting period before it is final. Legal separation does not involve a waiting period.
Filing for a legal separation is no less complicated than filing for divorce. The two procedures follow an almost identical course, from serving the petition to disclosing the full details of your finances to the court and your spouse. In both cases, you can enter into a settlement agreement resolving the issues of your marriage or the court can decide those issues for you in a trial. California’s legislation does provide for a summary divorce, however. This option is much simpler than either a separation or regular divorce. You might qualify if you have no children, own no real estate, have limited assets and debts and have been married for five years or less.
A decree of legal separation addresses the same things a divorce decree does, including support paid to either spouse and for any children of the marriage. Both resolve issues of custody, visitation and property distribution. The terms of each are binding. The most significant difference is that a legal separation does not end your marriage. You can remain on your spouse’s health insurance policy, if necessary, and you can’t remarry.
California law allows you to convert your legal separation to a divorce after your separation is final or at any point during the legal process. Either spouse can file a request with the court, asking for the conversion. Although this requires additional paperwork, if you’re in a hurry to get your divorce moving along but have not established residency yet, you can file for legal separation immediately. The six-month waiting period for a final divorce decree begins ticking down as you work through the legal separation procedure. When it has expired, you can file to convert your matter to a divorce.