Should I Get A Legal Separation Or A Divorce?

In the state of California, there are different options when considering dissolving a marriage, but the two most commonly pursued avenues are legal separation and divorce. Both are legally binding, but have key differences. How do you decide which is right for you?


Why consider legal separation?

Legal separation is more than just living separately. This is the process by which a couple does not ask the court to terminate their marital status and therefore remains married. However, in a legal separation, the couple does formally divide assets and debts, negotiate spousal support, and establish child custody, support, and visitation if there are children.

While pursing an “almost divorce” may initially seem illogical, there are many reasons considering a legal separation is best in some cases. There are many financial incentives to retaining marital status. Health insurance is a weighty factor to consider if one spouse wishes to continue providing it for the other, as are the potential social security benefits if the marriage has lasted longer than 10 years. The lack of residency requirements and waiting periods are still other factors that cause many to choose legal separation instead of divorce. Religious beliefs are another important consideration when making this decision as some religions forbid divorce. An additional potential advantage to legal separation is that it can give both parties more time and breathing room to separately consider reconciling the marriage.

It is important to note that both parties must consent to obtaining the legal separation and when this is the case, neither you nor your spouse are free to remarry because the marriage is still valid. However, you must know that when one party files for a legal separation and the other responds with a request for dissolution, the matter will proceed to dissolve the marriage.

Why consider divorce?

In the absence of any of the compelling reasons above, and if the end of the marriage is inevitable, it may be best to consider divorce. Additionally, if either one of the parties wishes to have the option to remarry in the future, divorce is required in order to be legally free to do so.

It is important to note that there are residency requirements that must be satisfied before you can file for divorce. You must have lived a minimum of 6 months in the state and 3 months in the county before you are able to file. It is also of significant mention that there is a mandatory 6 month waiting period after serving the respondent before a divorce decree can be entered.

Should I hire an attorney?

While some simple issues may be decided amicably between spouses, negotiating and drafting a comprehensive agreement that will hold up in court is challenging. Some couples are able to reach agreements on their own, but most find that emotions get in the way of effective communication. Because the decisions made in a legal separation or divorce can have serious consequences, it may be in your best interest to hire a professional who can ensure your rights are protected and help you reach resolutions in a cost-effective manner. If you have any questions about pursuing a legal separation or a divorce, you should consult with an experienced family law attorney who can provide reliable legal advice.

Contact the Law Office of Olga A. Koplik to schedule a consultation and find out more about your rights and options. Call (916) 745-4378