Should You File For Legal Separation or Divorce?

Divorce, Legal Separation, Mediation

Separated but not legally separated:

Many people leave their partners on a trial basis and are living separately; however, they want a trial separation to see whether they can work things out.  They often wrongly assume that after they leave, they are “legally separated.”  That is incorrect.  The couple may even have an informal agreement on how to divide their marital assets, time with their children and what spousal and child support will be.  They go on with their lives not realizing that there is still an argument that what they received, by agreement, is still jointly owned and subject to future division.  In this instance, the parties have “separated;” but they are not “legally separated.” A legal separation is obtained only through a Court order. 

What is legal separation?

A legal separation is a Court order that divides the couple’s marital assets, their time with their children and determines the amount of child and spousal support.  Essentially, a legal separation is similar to a divorce in terms of the legal process and cost; however, a legal separation does not return the parties to the status of being single.  The couple is still legally married and if they want to marry someone else, then they must file for a divorce.

Why file for a legal separation:

Under certain circumstances, someone may want to file for a legal separation.  A party may not have been in the State and/or County long enough to meet the residency requirement for divorce.  One party may be uninsurable and may need to stay insured under the other party’s health care insurance.  A party may want to keep accruing the benefits of the other party’s social security.  A party may be very religious and divorce may be prohibited or frowned upon by their religion. Or a party may want to legally separate for a while with a goal towards seeing whether reconciliation is possible. However, despite what you want, the other side can disagree and respond by filing for divorce.  When that happens, there will be a divorce and not a legal separation. 

Why file for divorce:

A divorce is final.  You become single. You receive your share of the marital assets and debts. You can re-marry and are no longer legally tied to the other party.  Although if you share children, there will probably be continuing contact with the other party.

Cost of a legal separation versus a divorce:

The Court filing fee is the same for legal separation or divorce.  As far as attorney fees are concerned, the cost is also the same.  However, if you first file for a legal separation and then file for a divorce after the Judgment has been entered, you will incur more attorney fees as it will essentially be two litigation cases.

What happens if I file for legal separation and, before the judgment is entered, I want a divorce?

It is easy to change a filing for legal separation to a filing for divorce, provided the Judgment has not been entered by the Court.

What happens if I get a legal separation and then want to marry someone else?

In this instance, you would have to file a new action for divorce and pay another filing fee.  Even though you are “legally separated,” you still have to disclose your assets, debts and income all over again, regardless if you have reached an agreement as to the division of your marital assets and debts.

 

COMPARISON OF DIVORCE AND A LEGAL SEPARATION

 

DIVORCE

LEGAL SEPARATION

File with the Court to get a Court Order

File with the Court to get a Court Order

Pay a filing fee

Pay a filing fee

Residency requirement to file

No residency requirement to file

Have to disclose your assets and debts

Have to disclose your assets and debts

Have to disclose your income

Have to disclose your income

Discovery may be done

Discovery may be done

Property gets divided

Property gets divided

Child support may be ordered

Child support may be ordered

Spousal support may be ordered

Spousal support may be ordered

Waiting period to get Judgment of Divorce Separation

No waiting period to get Judgment of Legal

Other party cannot stop you getting divorced separated and can file for divorce

Other party can stop you getting legally

Single after the Judgment of Divorce so you can remarry

Married after the Judgment of Legal so you cannot remarry

Termination of spousal health care coverage

Continuation of spousal health care coverage

Termination of social security benefits

Continuation of social security benefits

No medical or financial decisions for other

Medical or financial decisions for other

Remarry if you want to be married to other party

Still married if you want to reconcile

The Importance of the CFLS Designation

A Certified Family Law Specialist, or CFLS, is an attorney who has obtained certification in the standards of California family law and demonstrated optimal legal competence. Attorneys who obtain this certification have specific expertise in all aspects of family law, which includes divorce or the dissolution of marriagechild and spousal support, child custody, and temporary restraining orders, among other areas of emphasis.

Not every attorney practicing family law has obtained this certification. In fact, the designation remains relatively rare—there are fewer than 2,000 CFLS attorneys in California and fewer than 200 in San Diego.

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