How Does a Legal Separation Differ from A Dissolution of Marriage?

Posted by Leslee NewmanFeb 10, 20220 Comments

If you are unhappy in your marriage what can you do about it? You could seek a divorce, a legal separation, or a nullity. The process of filing a case with the court is almost identical, but the procedure and the ramifications of filing a legal separation or a nullity instead of a divorce are different.

In California since 1970, we have a “no-fault” system in which there are only two grounds for divorce—“irreconcilable differences” and “incurable insanity”. Irreconcilable differences can encompass a wide variety of reasons, but often means that the spouse applying for the divorce is in a new or better relationship, is being harassed or abused by the other spouse, or wants a different life in another state or country but their spouse does not want to move away. Any of these reasons could create a breakdown of the marital relationship, with the Petitioner spouse testifying that the couple can no longer live together.

Why file for a legal separation instead of a divorce? The court forms and the court process of filing for either a divorce or a legal separation are almost identical. In every legal separation or divorce process there are three areas in which choices by the spouses must be made. If any child is under the age of 18, a parenting agreement must be drafted as well as the allocation of child support determined, especially for a child with special needs. Also, spousal support could be an issue if the earnings of each spouse are substantially different. Finally, the personal and/or real property owned by Husband and Wife which is community property must be divided.

However, if you select the legal separation route, you do not terminate the marital relationship of husband and wife. What are the reasons for doing this? They might include the following:

  • Either husband or wife feels compelled by religious beliefs to remain married even if husband and wife are no longer living together.

  • A Judgment of Legal Separation enables one of the spouses who may not qualify for health insurance because of a pre-existing condition, or cannot afford to obtain their own health insurance, to remain on the health insurance of the other spouse for as long as they are still married, even if they don't live together.

  • The Judgment of Legal Separation divides the marital community property, provides spousal support and/or child support for a minor child or children, divides marital debts, and terminates the responsibility of each party to pay for new debts or expenses of the other party after the date of separation.

  • Additionally, unlike the procedure for filing a Dissolution of Marriage, the spouse filing a Legal Separation does not have to be a resident of the county of the Court's location for at least 3 months prior to the filing, and a resident of the State of California for at least 6 months prior to filing the Legal Separation in the State of California. (This is different for a divorce/dissolution of marriage which requires that at least one of the parties has resided for a minimum of 3 months in the county of the Court's location and at least 6 months in the State of California just prior to filing.)

Because legal separation and divorce in California are complicated processes, it is best to seek consultation and/or representation from licensed, experienced, and skilled family law attorneys and professionals.