Divorce or Legal Separation?

The process is the same, the cost is the same, and all the forms are the same, you just check a different box. And the outcome is the same except for your status: If you choose Legal Separation instead of Divorce in Orange County, you are still a married person, you can still file taxes jointly with your spouse, and you cannot get remarried.

There are 4 primary reasons why couples choose a Legal Separation rather than a Divorce:

  • Health Insurance: You may be able to stay on your spouse’s health insurance. Insurance companies will not allow ongoing family coverage in a divorce situation, even if that’s what the member wants. But if you are legally separated, you are still a family so the insurance company, in most instances, continues coverage.
  • Religious Reasons: Some churches frown upon Divorce and may even exclude you from their congregation. Even if your spouse does not agree to the Legal Separation and you end up divorced, your church cannot fault you since you only asked for Legal Separation.
  • Financial Reasons: You may actually want to stay married and continue to live as husband and wife but you want to protect yourself from the ramifications of your spouse’s financial choices. After all, when you are married and not legally separated, under California community property laws, you are on the hook for debts incurred by your spouse, and creditors can come after your property.
  • Jurisdiction: In order to file for divorce in Orange County, you have to have lived in the State of California for at least 6 months and in Orange County for at least 3 months. Legal Separation does not have any residential requirements. So if you just moved here and want to obtain custody and support orders or protect your assets, you can start out with Legal Separation and then, once you meet the residential requirements, amend your Petition to Divorce.

So if you don’t plan to get remarried and you don’t care to have the physiological freedom of being divorced, or if health insurance is a big issue for you or you don’t want to lose your standing in your church, then Legal Separation may be your choice. You can live apart, get child support and spousal support orders, and divide your assets and debts, divide pension plans etc. But you both have to agree to Legal Separation. If one of you wants a divorce instead, divorce will prevail.

The catch is that once you have a judgment for Legal separation and then you wish to be divorced, you have to file a new Divorce Petition and pay another filing fee. And if you have wedding plans, be sure to initiate your divorce process at least 6 months before your wedding date. No matter what, you cannot get remarried before the 6 months from the date of service of divorce papers are up, even if you are already legally separated.