A person may have a question as to which process is more beneficial when contemplating ending a marriage. Most people decide between a divorce or legal separation since annulments are rare. The process for a divorce or legal separation are similar. The issues of child custody, visitation, child support, spousal support, attorney fees and property division are addressed in both a divorce or a legal separation.
The primary difference is that at the end of a divorce both parties are returned to a single status while the parties in a legal separation remain legally married. A party with a legal separation is unable to remarry while a party with a divorce is free to remarry. The process of legal separation should also not be confused with the “date of separation” or the fact that a couple has “separated.” Legal separation may be used for parties that believe that there is a chance of reconciliation (fixing their marriage). In addition, legal separation is used in situations where one or both parties are unable to divorce for religious or personal reasons (including maintaining health insurance for a sick spouse).
Both parties in a case must request a legal separation to maintain the process. The legal separation automatically becomes a divorce if a party files a Petition for Legal Separation and the other party then requests a divorce in their responding paperwork. A request for legal separation may also be converted over to a divorce by amending the pleadings in the future pending that jurisdiction is satisfied. In other words, it only takes one party to request a divorce.
A person must reside in California for 6 months and in a particular county for 3 months before they meet the jurisdictional requirements for a divorce. A legal separation does not have the jurisdictional requirements. So there are times where a party may file for legal separation until they meet the jurisdictional requirements. Then a party can amend the legal separation into a divorce after the party satisfies the jurisdictional requirements.
If you have questions about whether legal separation or divorce is right for you or you are ready to start the process, please contact us for a consultation.