Differences Between Legal Separation And Divorce

Legal Separation Vs Divorce

Separation may be an alternative to divorce, or it may be the first step on the road to divorce. But in the legal separation vs divorce debate, it is important to understand the legal implications of each. We’ll also discuss the risks of separating without the necessary, protective paperwork in place.

Moving Out

We do not recommend just moving out and living separately without a legal separation agreement in place. While a legal separation is unusual unless it is being done as a precursor to divorce, you should have a legal separation agreement in place. We recommend having a separation agreement in place to ensure you get support, even if you’re going through a trial separation. Legally, there is no difference between a trial separation and a permanent separation if you have the separation agreement in place.

Legal Separation

A legal separation means you agree to live apart, but many of the legal rights limited to spouses remain with the other partner. For example, each partner is still able to make medical and financial decisions for the other. If your separated spouse is charging everything to their credit cards, California’s community law says you’re equally liable for the debt.

On the other hand, you retain your legal rights to their property. For example, you’d inherit their assets automatically in many cases and may do so tax-free. You can remain on the partner’s health insurance plan. Some couples choose to remain legally married so that they meet the ten year requirement for Social Security benefits. You can still take advantage of tax benefits of filing jointly. However, tax law is complex and you should consult with an attorney rather than making assumptions.

A legal separation is not a divorce. You’re not allowed to marry someone else. On the flipside, it is easier to reconcile. You can move back in together at a later date. If you divorce your spouse, you would have to remarry, if you want to regain the legal rights that come with spouses. If you are legally separated, you can generally file for divorce at any time.


With divorce, the ex-spouse is no longer considered next of kin because the marriage is over. This affects everything from medical decision making to inheritances. The divorce decree spells out the division of property as well as issues like child visitation and child support.

Note that a divorce is very different from an annulment. In an annulment, you are asking the courts to say your marriage was never legally valid. You have to have a valid reason such as someone committing fraud or being under 18 at the time of the marriage. Irreconcilable differences are not a valid reason to annul the marriage. Nor is annulment an option if the statute of limitations is reached, though you can file for separation or divorce at any time.

The Similarities between Divorce and Legal Separation

The separation agreement addresses many issues covered by divorce agreements. A separation agreement can include separation maintenance. This is the equivalent to child support and alimony. The legal separation agreement includes child custody and child visitation.

The legal separation agreement will determine who lives where. You might say Mom lives in the house while Dad lives in a condo in town. However, this doesn’t alter ownership of either property. Unlike a divorce decree, you can mandate X pays the house payment while Y pays the property taxes while one of them lives in the house.

Difference Between Legal Separation And Divorce In CA - California Divorce Attorney Explains to You

Also Read Reconciliation During A Divorce Process
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