THE AURIT CENTER

Legal Separation vs. Divorce in California: Which Is Right for You?

The difficult life decision between legal separation and divorce is easier when you understand your options.

The Aurit Center for Divorce Mediation is here to help.

In this article, we’ll look at legal separation vs. divorce in California. We’ll explain both approaches and the benefits and requirements of each. You’ll have a clear understanding of what each path entails, and you’ll be able to choose the approach that will work best in your situation.

What is legal separation?

A legal separation allows spouses to live apart and financially separate while remaining legally married. It addresses issues such as:

  • spousal support;
  • asset division;
  • child custody; and
  • other matters handled during divorce proceedings.

It’s an alternative to divorce, which legally ends the marriage. Legal separation is often the preferable option for spouses who aren’t quite ready to divorce. It allows them to establish boundaries and divide financial responsibilities while remaining legally married.

Mediation is the most effective way to become legally separated. It avoids increased conflict and happens out of court.

Reasons to choose legal separation over divorce

Here are some common reasons people choose legal separation:

  • To give them time to make decisions. Legal separation can serve as a trial period for spouses to assess whether to remain married, remain legally separated, or move on to divorce.
  • To protect one or both of them financially. Spouses can choose to legally and financially separate and later reverse the legal separation as legal separation can provide financial protection for one or both of them.
  • To be in line with religious beliefs.
  • To continue certain benefits, such as health insurance.

The legal separation process is an opportunity to determine and establish child custody while the marriage is still intact. This helps some parents ensure stability for their kids as they make decisions about the future.

What are the requirements for legal separation in California?

Only one spouse must live in California to file for legal separation, and there are no time requirements. Spouses can reach agreements on marital asset and debt division, child support, parenting time while staying legally married.

Spouses can “convert” the legal separation to a dissolution of marriage if they decide to divorce at a later date. Every petition for legal separation must include the:

  • names of both spouses;
  • location and date of the marriage;
  • names of any minor children or dependents;
  • proposed child custody and support arrangements, unless parents choose mediation where they will agree on these issues during the process;
  • date when the spouses started living apart;
  • each spouse’s new address;
  • complete and accurate financial disclosures detailing income, expenses, assets, and debts; and
  • financial arrangements and responsibilities to which both spouses have agreed.

Given the complexities associated with family law, it’s best to work with a mediator. This way, you and your spouse can make informed decisions and avoid the conflict of litigation with divorce attorneys in court.

What is divorce?

Divorce is the legal dissolution of a marriage. It ends the legal ties between the spouses, allowing them to marry again. Unlike a legal separation, it represents a permanent end to the marriage.

A divorce agreement settles matters such as:

  • division of assets and property;
  • spousal and child support; and
  • child custody.

Divorce mediation is the healthy approach. It is based upon peaceful resolution instead of a legal battle in court.

According to the United States Census Bureau, in 2021, the national marriage rate was 14.9%, and the national divorce rate was 6.9%. This means that nearly 50% of marriages resulted in divorce.

Reasons to choose a divorce over legal separation

Here are some typical reasons people choose divorce:

  • To legally end a marriage with finality, as there’s no desire to reconcile.
  • To marry another party in the future. Legal separation doesn’t allow either spouse to remarry.
  • To establish financial independence for both of them.
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Have you decided that divorce is the best option for you? If so, you might find this article helpful: 10 Tips for Talking With Your Spouse About Divorce.

What are the requirements for divorce in California?

There are specific residency requirements for divorce in California, including eligibility.

One spouse must have lived in California for at least six months before filing the petition. The spouse filing the petition must have lived in their county of residence for at least three months.

There are generally five main topics to consider when filing for divorce:

  1. children of the marriage: custody, visitation rights, and support;
  2. debt allocation;
  3. property division;
  4. spousal support; and
  5. family law attorney fees (if applicable)

A divorce petition requires the same information as a petition for legal separation.

How mediation can help you through your legal separation or divorce process

Here are some of the benefits of choosing mediation for your legal separation or divorce:

  • It keeps things private: Mediation is a confidential process. It allows spouses to discuss and resolve problems away from the public eye.
  • It’s more affordable: Mediation is less costly than going to court. Spouses can share the cost of working with their mediator instead of each paying for expensive attorneys.
  • It’s faster than family court: Mediation can be quicker than going through the slow court system. Spouses can reach resolution faster and save time and emotional stress.
  • It offers flexibility: Mediation is a flexible and tailored solution. It allows spouses to adapt to concerns and legal issues specific to their situation. Spouses can reach unique, creative agreements that work best in their situation.
  • It provides comprehensive agreements: Mediation addresses all aspects of divorce or legal separation. These include child custody arrangements, asset division, and financial support. Spouses reach more comprehensive and satisfying agreements in mediation.
  • It helps foster healthy co-parenting relationships: Mediation encourages healthy and open communication. It helps co-parents make arrangements that are in the best interests of their children.
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FAQs about legal separation and divorce

Do I need an attorney to file for legal separation?

No. You don’t need an attorney to file for legal separation. In some ways, hiring one may do more harm than good as it can increase conflict between you and your spouse.

It is important to keep in mind that delays and confusion are common if you file independently. A mediator can help you avoid conflict, delays, and confusion.

Your Aurit Center Certified Mediator can help you with the initial filing, which is a neutral petition. It is reviewed and signed during mediation. This avoids the high-conflict process where one spouse “serves” the other with divorce papers. You complete mediation and reach all agreements without ever stepping foot in a courtroom.

Is there a waiting period for divorces in California?

Yes, a six-month waiting period is required for divorce in California. In litigation, this means you must wait at least six months after “serving” your spouse with divorce papers before you can divorce. In mediation, there’s a mandatory waiting period of six months after your initial legal documents are filed.

How long does it take to get a legal separation in California?

Unlike divorce, there’s no waiting period after you’ve filed the petition to legally separate. This makes the entire process much faster.

With the help of a mediator, most spouses reach all agreements in just a couple of meetings.

How long is a legal separation valid in California?

A legal separation is valid in California for as long as the spouses choose. This gives them as much time as they need to decide on the next steps — if any — they’ll take.

Choose mediation to have a healthy legal separation or divorce

The process of choosing between legal separation and divorce is easier when you have the information you need. Aurit Center Certified Mediators support you through the legal separation or divorce process with ease and simplicity.

Aurit Center Certified Mediators provide legal separation, divorce, and child custody solutions. We’ll help make the process smooth for you and your family.

Book a free consultation today to learn more about how we can help you and your spouse reach the best possible agreements.

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