Are you considering filing for divorce in the state of California but unsure whether there’s a better option? Maybe you’ve heard that filing for a legal separation would be best, but what exactly are the differences between the two.
Divorce and legal separation are both serious legal matters. But, when you’re already preoccupied and attempting to navigate a rocky marital situation, having to figure out your best course of action can be even more distressing.
Knowing the details about each process can help you make a more informed decision regarding your future. Today, we will take a closer look at the details you need to know to help you decide whether a divorce or legal separation is a better option for you in California.
What Is a Legal Separation
Both divorce proceedings and legal separation proceedings begin with a petition filed to either dissolve the marriage (divorce) or invoke a legal separation between the two married people.
A legal separation agreement is a document that details things such as how you and your spouse will split your property, custody arrangements for your child(ren), and how you will pay for things during the legal separation process. This document is important during a legal separation, but it is also commonly one of the first things arranged during the beginning process of a divorce.
When you obtain a legal separation, you are still technically married. When you are legally separated, it means that you cannot remarry unless you convert your legal separation into a divorce. In a legal separation case, you still have to declare your assets and settle custody issues just as you would in a divorce case.
How Are Divorce and Legal Separation Similar?
In both divorce and legal separation cases, both parties must disclose their assets and agree to custody arrangements set by the court. Property, as well as assets, are usually divided between both parties in a legal separation.
The two processes are very similar, save for the outcome. In a divorce, your marriage is dissolved, and you may have limited access to your ex-spouse’s future retirement income.
Why Would I Consider Legal Separation?
In California, you must have been resident in the state for at least six months and a resident in the county where you are filing for divorce for at least three months. This residential requirement must be met by one or both parties for a divorce to occur.
- There are no residential requirements or ‘cooling off’ periods required in a legal separation. Because there is no waiting period for a legal separation, it may be a better option for someone who has just moved to the area.
- Some people have very personal reasons for wanting to avoid a divorce. For example, certain religions frown on divorce, and one or both parties may wish to avoid the stigma of being legally divorced. Others may simply want to avoid being called a divorcee.
- Occasionally, couples choose legal separation to try and keep healthcare benefits for the spouse of the insured. However, legal separation isn’t a guarantee that the health insurance provider will have to keep the spouse covered, so this can be a risky plan.
- If you are legally separated, you may still be able to file taxes as a married couple. Filing this way could help you with certain tax breaks.
Are There Negatives to a Legal Separation?
A legal separation isn’t a ‘clean break.’ Because your marriage has not been dissolved, you can’t legally remarry. And you are still financially tied to your spouse despite being separated.
Since you are technically still married, you could be liable for your spouse’s tax debts. If they fail to pay their taxes, the IRS might come looking for you to pay it. If there is no financial benefit for either party under a legal separation (and there is no chance of reconciliation), it may be a better option to file for divorce instead.
For most people, a legal separation is simply the necessary first step towards a divorce. If you are sure that you want out of your marriage, a legal separation will only prolong the process.
Let Us Help You Navigate Your Separation
Divorce and legal separation are both difficult and draining processes. With so many moving parts and conflicting emotions, trying to map out your best legal options can be extremely difficult.
At Azemika & Azemika, we are dedicated to the practice of family law. We have seen numerous legal separation cases, divorce, custody matters, and many other family law issues. We can help you navigate the course of your legal proceedings so you can focus on healing your family.
Contact us today for a consultation, and we will work with you to determine the best option for you and your family’s future.
