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Divorce Basics: Should I Get a Legal Separation or a Divorce?

When you are married or in a registered domestic partnership and you are looking to end your relationship, it is important to be knowledgeable about all of your legal options.  The two common routes to terminate a marriage or domestic partnership are a divorce (also known as a dissolution) or a legal separation.  When determining whether to file for legal separation or divorce, there are differences to consider in making your decision.

What is the Difference between a Legal Separation and Divorce?

The initial steps for filing a legal separation or divorce are almost exactly the same when initiating the legal process.  The paperwork, including a Summons, Petition, and financial disclosures, must be filed the same way.  Property division and support (either child or spousal) are also indistinguishable in either legal separation or divorce.  Lastly, a judgment finalizing the relationship is declared at the end of both a legal separation and divorce.

The most differentiating characteristic of a legal separation is that the parties cannot remarry, while after a judgment of dissolution, the parties regain their status as single persons and may remarry again.  Therefore, the parties should consider whether they envision themselves entering another relationship, partnership or marriage in the future. If they are likely to do so, then a legal separation might not be the best choice.  Although a legal separation does not prevent a party from dating someone else, it will prevent him or her from legally marrying because they will not be considered divorced.

Why Would Anyone Choose Legal Separation Over Divorce?

You may be wondering why a couple would choose legal separation over divorce as an avenue for ending their relationship.  There are many legitimate reasons why a couple may choose legal separation rather than divorce.  Many cultures and religions forbid divorce or it is considered taboo; therefore legal separation offers couples who abide by those tenements an option to successfully divide their assets without engaging in a culturally or religiously prohibited act.  Another situation that arises is that the couple would like one spouse to remain on the other’s health insurance and a divorce proceeding may eliminate that as a possibility.

In addition, another benefit is that while in divorce proceedings there is a statutory wait period of six-months in California for a divorce to finalize. However, there is no such waiting period for a legal separation.  Lastly, if a party has just moved to California and does not meet the residency requirements to file for divorce, he or she may file for legal separation first and then amend the petition to a dissolution once the residency requirements are met.

How Long Can You Be Legally Separated?

A couple may be legally separated for as long as they prefer.  Some couples remain separated for the rest of their lives.  Another option some couples take is after a period of legal separation, moving on to filing for a divorce so that one or both parties can then remarry.  There are different options that work for each unique situation.

Is there a downside to choosing a legal separation?

Whether to file for a legal separation or divorce is a personal choice that must be made by an individual based on his or her personal preferences and circumstances.  Generally speaking, one of the major downsides to choosing a legal separation over a divorce is that if the parties decide that they want to divorce in the future, then they will have to re-start the process all over again, including filing a summons, petition and other financial disclosures.  This typically means more costs and more time spent on a matter that could have been resolved once around with a filing of dissolution.

What Is the Best Decision For You?

Are you unsure about which path to take? Contact Los Angeles Family Law Attorney Sanjay A. Paul at  (626) 325-0770 to discuss your options.