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Is legal separation more advantageous than divorce?

If your California marriage or registered domestic partnership is considerably less than ideal, but you are not yet ready to face the prospects of a divorce, you may wish to consider a legal separation. As FindLaw explains, it may help you psychologically to think of a legal separation is a marital timeout.

You and your spouse or partner remain legally married while legally separated, but you have the advantages of living apart from him or her with enforceable court documents setting forth the rights and responsibilities of each of you regarding such things as the following:

  • Child custody, visitation and support
  • Spousal support
  • Health and life insurance coverage
  • Joint income tax filing
  • Opportunity for reconciliation

Contractual relationship

Your legal separation is a contractual relationship, the contract being the court orders that pertain to it. Your separation can be temporary, permanent or the prelude to your eventual divorce. Should you and your spouse or partner reconcile, you can void all your separation documents, thereby breaking the contract and returning you to your former marital state.

Filing for legal separation

Filing for a legal separation is much like filing for divorce. You must file a petition with the appropriate court and personally serve this petition on your spouse or partner. Your petition must state either that you and your spouse or partner have irreconcilable differences that have caused your marriage or domestic partnership to irremediably break down or that your spouse or partner suffers from incurable insanity.

Unlike a divorce, California does not have residency requirements for legal separations. If, however, you and your spouse or partner eventually decide to divorce, your legal separation serves as the required six-month cooling off period prior to divorce finalization.

Your actual separation date is the date on which one of you declares your intent to end the marriage or partnership and does something to express that intent, such as moving out of the marital home and into a separate residence. Your legal separation date, however, is the date on which the court issues its order.

Religious considerations

Should you and/or your spouse or partner adhere to a religion that prevents or frowns upon divorce, a legal separation satisfies both your religion and your need to live apart from your spouse or partner. Naturally neither of you can remarry or enter into another domestic partnership while legally separated, but in all other respects, you can live as a single person.

While this information is not legal advice, it can help you understand legal separation and what to expect.