Legal Separation

Legal separation in California allows couples to live apart while resolving important matters such as property division, child custody, and support, all while maintaining their marital status. Through a legal separation, the couple can stop creating “community property” that would otherwise continue to accrue. This process is handled through the courts and requires the submission of formal legal documents. Unlike divorce, legal separation does not require a residency waiting period, allowing couples to address their needs and protect their rights without delay. Legal separation acknowledges the complexities and sensitivities of each family’s situation, offering a path forward with both clarity and compassion.

How Legal Separation Works

You and your spouse need to file a petition (or a Joint Petition for Divorce or Legal Separation) to get court orders. The process is similar to a divorce and involves the same details and court involvement, just without the termination of your marriage. When it is finalized, you’ll still be married and can’t remarry.

Child Custody & Visitation: Decides where children will live and who makes important decisions for them.
Support: Establishes child support and spousal support (alimony).
Property & Debt: Decides how to split property and debts gained during the marriage and can help prevent the continued accrual of community property.

Key Differences from Divorce

Why Couples Might Choose Legal Separation

Retain Retirement & Social Security Benefits

Staying legally married can help you keep Social Security spousal benefits, military pensions, or other long-term financial benefits that would end with divorce. Legal separation is especially helpful if you’re close to the 10-year marriage mark needed for Social Security spousal benefits.

Possible Reconciliation

Legal separation lets couples set boundaries, divide assets, and arrange child support without making things final like a divorce does. Some people just need time apart to think things over or try counseling. Being separated can help couples see if they want to stay together. If you decide to get back together, it’s much easier after a legal separation than after a divorce.

Residency workaround

If you’re new to California and haven’t lived here for 6 months, you can file for legal separation first to get court orders. Later, you can change your case to a divorce once you meet the residency rule.

Retain Healthcare & Insurance

Legally separated spouses can usually stay on each other’s employer health insurance, while divorce usually ends that coverage.

We can help with your Legal Separation

If you are considering legal separation, contact us for a confidential consultation. We will listen to your concerns, answer your questions, and guide you through the process with expertise and care. Call (833) 931-1615.

To Summarize
California Legal Separation

Allows married couples to resolve important issues such as property division, child custody, child support, and spousal support while remaining legally married.
Does not require a residency waiting period or a mandatory six-month waiting period for finalization, unlike divorce.
Provides the structure and legal protections of a court order while preserving marital status.
Enables couples to maintain health insurance, retirement benefits, or address religious and personal preferences.
May be chosen to maintain certain financial or health benefits, work around residency requirements, or allow time for possible reconciliation
It is similar to divorce in process and complexity, but does not end the marriage.
Spouses cannot remarry unless they later obtain a divorce.

Articles on Legal separation

Traveling with Children out of the United States while divorced or separated

How to Travel with Children Internationally While Divorced or Separated

Gretel Smith, Esq. October 25, 2024

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Navigating Custody Arrangements During Summer Break

Elizabeth Mayberry Esq. June 28, 2024

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Legal Date of Separation for a divorce court

Date of Separation – Being Over and Out

Trent Scheurman, Esq. December 8, 2023

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I’ve Been Served With Divorce Papers! Now What?

Rosario Santoyo October 27, 2023

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FAQs

Here are questions we often get about legal separation in California. Click each question to see our answer.

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Can being legally separated make the divorce more difficult?

Being legally separated usually makes divorce simpler, since many big issues are already settled. However, it can increase legal fees because you’ll need to file a new petition for divorce and go through another legal process.

Is a legal separation quicker than a divorce?

Both legal separation and divorce take about the same amount of time, but the outcomes are different: one ends the marriage, the other does not. The more you and your spouse agree on, the faster things go. Only divorce in California has a required 6-month waiting period.

Is there a waiting period for legal separation?

In California, there’s no required 6-month waiting period to finalize a legal separation, unlike divorce.

If both spouses agree on matters such as property, child custody, and support, a Judgment of Legal Separation can be finalized as soon as all paperwork is submitted and signed by a judge.

Does legal separation count toward the divorce waiting period?

Legal separation doesn’t start the 6-month waiting period. If you later file for divorce, the waiting period begins at the same time that the divorce process begins with the filing of the paperwork to start the divorce case.

Legally Separated While Living in the Same Home in California?

Can you be considered legally separated when living in the same home? Yes, you can be legally separated while living in the same home if you live separate lives. Courts look at things like separate finances, separate bedrooms, and whether you act publicly as separated. The main thing is to stop acting like a married couple.

Should I Legally Separate before a divorce in California?

Choosing legal separation before divorce is a personal choice. It lets couples handle money and custody issues while staying married. This can matter for financial, religious, or personal reasons, or if you’re unsure about divorce.

Choose Our Attorneys

At Burgos Santoyo Smith, we guide you through every step of the process of your legal separation with both authority and compassion. Our attorneys combine deep community roots, extensive mediation experience, and the personal attention of a small firm. We understand that legal separation is about more than legal outcomes; it’s about safeguarding your family’s future and well-being.