The Difference Between Legal Separation And Divorce

The idea that you and your spouse may no longer share your lives together can be devastating and it is common for people to get lost in the emotional toll and legal confusion. When the time is right, however, it is wise to educate yourself on your available options for your next steps with your spouse.

Though the terms legal separation and divorce are often used interchangeably in California, they have distinguishing features. Before pursuing one option, it may be beneficial to understand the difference between legal separation and divorce.

Legal Separation vs. Divorce

Both legal separation and divorce refer to a legal process that arranges the division of property, child custody, visitation rights, and a schedule of alimony payments (when applicable).

A divorce is a firm legal division that legally ends the marriage. People who choose divorce over legal separation are often either hoping to become remarried in the future, hoping to dissolve nearly all financial and legal obligations between the spouses, or see no legal benefit of maintaining their marriage

Though divorce is more common, there are benefits of maintaining a legal separation.  With a separation, the spouses’ property and financial assets are still divided, however, the spouses often live separately. The key difference is that spouses who legally separate are still considered legally married and can benefit financially if they so desire. 

People who seek legal separation often do so because:

• The spouses are having significant difficulties but want the option to work on their marriage in the future
• The spouses have not fulfilled the six-month time period that spouses must meet in the state of California before filing for divorce
• The spouses do not believe in divorce due to religious or spiritual reasons
• One spouse receives health or social security benefits that they wish to continue to share with the other
• The spouses want to maintain the tax savings of a married couple
• The spouses feel that a separation is less devastating and easier to handle than a divorce

Please keep in mind that certain benefits are not valid after legal separation and it often requires the scrutiny of an experienced lawyer to assess whether the benefits may be shared in a separation.

Often people who undergo a legal separation falsely believe that it is unnecessary to invest in an experienced family law attorney. This mistake can have a devastating financial effect on one spouse if the other spouse hires an aggressive and experienced family law attorney.

The Bottom Line

Though legal separation may appear to be a less complicated process than a divorce, the three most contested issues in a divorce — the separation of assets, child custody and visitation rights, and the schedule of alimony payments — are still all present with legal separation.

Before pursuing a divorce or legal separation, it is advised to speak with an experienced separation and divorce attorney in your area. Lonich Patton Ehrlich Policastri offers free 30-minute consultations for people wishing to educate themselves in family law practice or who have questions regarding their unique situation.

No matter which option you choose, it is important for you to invest in a qualified and reputable family law attorney in San Jose County. LPEP is one of the largest family law firms in the Bay Area, with more than 100 years of combined experience. Set up a free virtual consultation here.