Legal Separation or Divorce? How to Choose What’s Best

Ending a marriage is never an easy choice, and determining whether you should legally separate or formally divorce can only add to the stress. While a divorce dissolves the marriage, a legal separation is a court order that mandates the rights and duties of the couple while they’re still married but living apart. While both types of arrangements separate the couple financially and provide some type of legal framework from which they can navigate the end of their partnership, there are some key differences.

An experienced Irvine divorce lawyer can help you review what might be right for you. Doing so requires understanding your unique goals and challenges and determining the best and most advantageous approach for preserving your wealth and your peace. 

How Are Legal Separations and Divorces Different?

A legal separation essentially puts your marriage on pause. While both parties move to different homes and start living separate lives, they remain technically married on paper unless they decide to get a divorce. A legal separation, however, allows you to divide property, establish an arrangement for how you will raise your children, and ends any and all financial connections that once existed between you.

Sounds like a divorce, right? In many ways, it is. A divorce, however, actually ends your marriage – a court needs to approve the decision and sign off on an agreement that divides your property and assets and establishes child custody and support payments. While legal separation and divorce are quite similar, they also usually tend to cost the same amount of money to complete.

Why Choose One Over the Other?

It’s true that legal separations and divorces are somewhat alike, but there are reasons for selecting one over the other that your Irvine divorce lawyer can help you review. For instance, couples who aren’t entirely sure they’re ready to end their marriage forever might benefit from the time and space that a legal separation affords them. Other couples may find that they remain amicable enough to share things like health insurance, and divorcing would no longer entitle them to those benefits. Other couples may wish to divorce but can’t for religious reasons, and find that a legal separation suits them well.

There are financial benefits to legal separation as well. Separated couples can still file their taxes as a married couple and obtain some important tax breaks and benefits. In addition, if you’re angling to obtain certain benefits from Social Security tied to your spouse, remaining legally separated will make it easier to do so.

Contact an Irvine Divorce Lawyer to Learn More

Determining whether you should divorce or legally separate isn’t easy, but an experienced Irvine divorce lawyer can help. Contact us today to learn more.

Frequently Asked Questions

What is the practical difference between legal separation and divorce?

Both resolve the same issues, dividing property and debt, setting support, establishing custody, but only a divorce ends the marriage. After a legal separation the parties remain married and neither can remarry. Two procedural differences also matter: a legal separation requires the other spouse’s agreement, because a court cannot grant one over an objection, while a divorce can be obtained unilaterally; and there is no six-month waiting period or state residency requirement for a separation.

Why would someone choose legal separation?

Usually for a practical reason rather than a legal one. Preserving eligibility under a health plan or another benefit that terminates on divorce is the most common, though many plans treat legal separation as a qualifying event, so this must be confirmed with the specific plan rather than assumed. Religious objections to divorce lead some couples to separate instead. Others use it to resolve finances before either spouse has met the residency requirement to file for dissolution, or because they are simply not ready to end the marriage.

Does a legal separation stop community property from accruing?

Effectively, because the judgment divides the estate and the operative date of separation cuts off the accrual of community earnings. But the date of separation is a factual question decided on evidence, requiring both that a spouse expressed the intent to end the marriage and that their conduct was consistent with it. Where income is substantial, an ambiguous date of separation is expensive, so the break should be documented regardless of which route is chosen.

Can a legal separation be converted to a divorce later?

Yes. A pending legal separation can generally be amended to a dissolution before judgment, and where a separation judgment has already been entered either spouse can later file for dissolution. Importantly, the property division in the separation judgment ordinarily stands, so the later dissolution addresses marital status rather than reopening the division. That is worth understanding before agreeing to a separation judgment, because the financial terms are usually final rather than provisional.