Family Law

Divorce (Dissolution) versus Legal Separation

A divorce (also called "dissolution of marriage" or "dissolution of domestic partnership") ends your marriage or domestic partnership. After you get divorced, you will be single, and you can marry or become a domestic partner again.

If you get divorced, you can ask the judge for orders like child support, spousal support, partner support, custody and visitation, domestic violence restraining orders, division of property, and other orders.

For married persons to get a divorce, you MUST meet California's residency requirement. For information about residency for domestic partners, click here.

To file for divorce in California, either you or your spouse must have lived in:

    * California for the last 6 months, AND

    * The county where you plan to file the divorce for the last 3 months.

If you and your spouse have lived in California for at least 6 months but in different counties for at least 3 months, you can file in either county.

If you don't meet the residency requirement, you can still file for a legal separation.

Once enough time has passed so that you meet the residency requirement for a divorce, you may file an "amended petition" and ask the court for a divorce.

A legal separation does not end a marriage or domestic partnership. You can't marry or enter into a partnership with someone else if you are legally separated (and not divorced). A legal separation is for couples that do not want to get divorced but want to live apart and decide on money, property, and parenting issues. Couples sometimes prefer separation for religious reasons.

You do not need to meet California's residency requirement to file for a legal separation. If you file for a legal separation, you may later be able to file an amended petition to ask the court for a divorce-after you meet the residency requirements.

In a legal separation case, you can ask the judge for orders like child support, spousal support, partner support, custody and visitation, domestic violence restraining orders, or any other orders you can get with a divorce case.

Although a legal separation and divorce have, many things in common there are some advantages to obtaining a legal separation rather than a divorce. Those advantages include:

    * It allows couples time apart, away from the conflict of the marriage to decide if divorce is what they truly want.

    * It allows for the retention of medical benefits and certain other benefits that divorce would bring to an end.

    * If your religious beliefs conflict with the idea of divorce, you are able to live separately and retain your marital status for religious beliefs.

    * If you are a military spouse, you may wish to remain married for 10 years so that you can take advantage of benefits set up by the Uniformed Services Former Spouse Protection Act.

    * Remaining married for 10 years or more also means being able to take advantage of certain social security benefits for a spouse.

    * You will be allowed to file taxes jointly while legally separated which will mean positive tax benefits for both spouses.

    * If the decision to divorce is made, the legal separation agreement can be converted into a divorce settlement agreement.


© Alex J. Llorente  2012