Should I file for divorce or legal separation in California?

Differences between dissolution and legal separation – choosing the right option

Often potential family law litigants in Orange County and other parts of California wonder whether they should file for dissolution of marriage (i.e. divorce) or legal separation.  The two are very distinct actions and each should be carefully considered before an action is filed.

This page discusses each of the actions, the differences and similarities, and provides insight into which action might be right for your situation.

Dissolution of Marriage / Divorce Actions

Divorce actions are all-encompassing and begin with the filing of a Petition for Dissolution of Marriage.  When the Petition is filed, a case file is opened and a judge is assigned to the case.  A “summons” is issued which provides notice that a lawsuit is pending.  The Petition and summons are then served on the respondent, who should file his or her response within 30 days of service.

The date the petition and summons is actually served on the respondent is important in divorce cases.  There is a mandatory waiting period, or a cooling off period, before parties to a divorce will have their marital status terminated.  The rule is that there must be a cooling off period of at least six months, that begins on the date the respondent is served.

A divorce case is concluded when the parties to the case reach a written agreement which is incorporated into a judgment, or when the court issues a judgment after a trial.

Legal Separation Actions

Legal separation cases are also started with the filing of a Petition for Legal Separation, which is actually the same form used for filing for dissolution of marriage.  The petitioner simply checks the box for Legal Separation rather than Dissolution of Marriage at the top of the form.  Just like in a divorce action, the case file is opened, a judge is assigned, and a summons is issued.  The respondent must file his or her response within 30 days of service of the petition and summons.

However, since the case is not a “divorce” or dissolution of marriage case, there is no “cooling” off or waiting period in legal separation actions.

A legal separation case is concluded in the same way dissolution of marriage cases are concluded, which is upon the parties’ written agreement incorporated into a judgment or when the court issues a judgment after trial.

Differences between Dissolution of Marriage & Legal Separation

Although there are many similarities between divorce and legal separation actions, discussed below, there are also stark legal differences between the two actions.  The legal implications of divorce as opposed to legal separation can be very significant.  Some of the differences include the following:

  • Dissolution of marriage judgments terminate the marital status of parties, while parties that receive a legal separation judgment are still legally married to each other.
  • There are tax implications that may arise.  For example, if parties have a legal separation judgment and are still married, they have the option of file joint taxes.  Likewise, the married couple may have tax liability as a result of the other party’s non-reporting or non-payment of taxes.
  • Social Security benefits.  Divorced parties may have the right to “derivative” benefits of the other party’s accumulated social security benefits if the parties have been married for 10 years or more.  If parties are not divorced but have a legal separation judgment, it would be prudent to research what, if any, benefits may accumulate that the other spouse may be entitled to.
  • Certain “death benefit” issues may arise.  Because parties to a legal separation action will still be married following judgment, there may be legal implications that arise upon the death of one of the parties following the judgment.  For example, if the parties’ legal separation agreement and/or judgment do not have waiver provisions that disallow the taking of assets upon one party’s future death, the other party may have an interest in the assets owned by the deceased spouse at their death.
  • Retirement account issues may arise.  There are many different types of retirement accounts, including 401(k), IRA, pension, retirement savings, deferred compensation, life insurance savings, and other types of accounts.  Depending on the nature of a particular retirement account there may be issues with the treatment of that account for tax purposes and for the beneficiary designation when parties are legally separated.
  • Beneficiary issues may arise.  Similar to the “death benefit” discussion, above, certain life insurance policies, retirement accounts and other financial accounts allow for the designation of a beneficiary.  When parties divorce, they are no longer married to each other and may change beneficiaries.  But consider the case where parties are still married to each other but legally separate and obtain a judgment of legal separation.  The judgment may state that each waives their interests in the other’s accounts, including as beneficiary, but what if the beneficiary designation is never changed?
  • Reconciliation issues become very convoluted when parties are still married but have a legal separation judgment.  Here is an example: Suppose parties go through a legal separation case and obtain a judgment.  Two years later, the parties get back together, move in together, and resume their relationship as a married couple.  What happens to the legal separation judgment?

Similarities Between Dissolution of Marriage & Legal Separation

There are many similarities between divorce and separation cases.  The following are examples of ways that divorce cases are similar to legal separation cases:

  • Divorce cases result in a judgment, which is a legally binding document, and legal separation cases also result in a judgment.
  • Dissolution and legal separation cases are started with the same document, a form entitled “Petition”.  Both types of cases are filed in the Family Court and a summons is issued the same in both cases.  The respondent is served the same way in each type of case.
  • Parties are required to serve their “Declaration of Disclosure” on the other party in dissolution and separation cases, which includes a Schedule of Assets and Debts and an Income and Expense Declaration.  Each party has to disclose all investment opportunities and so forth.
  • The same types of hearing occur during divorce and separation cases.  There are always “status” or “case management” hearings, then “mandatory settlement” conferences in both types of cases.
  • Either party may file a “Request for Order” in divorce and legal separation cases.  For information about RFO – Request for Order hearings in Orange County, click here.
  • The issues that may be involved in a divorce case or legal separation case may include the same things, including property division, child custody and parenting time, child support, spousal support, exclusive use and possession of a residence, and so on.
  • Divorce and legal separation cases are resolved the same way.  Either the parties reach an agreement or they don’t, and if they don’t have an agreement there will be a trial.

Which Should I File, a Divorce or Legal Separation?

Whether you file for dissolution of marriage (divorce) or legal separation, be prepared for participating in a lawsuit.  As described above, the procedure and case structure is the same for both types of cases.  The same disclosures are required, the same hearings will take place, and you’ll resolve your case the same way.

You should know that a very small percentage of cases are for legal separation.  And generally, our advice is the same to most clients, which is that the downsides of legal separation actions are too great.

Many people seek a legal separation for religious reasons.  They don’t want to have a divorce because being divorced will be frowned upon by the religious establishment.  It is important to remember that in all states, divorces are permitted based on a “no-fault” system and the responding party will not be able to “stop” the divorce from happening.  In California, the Court will grant a divorce if the petitioner requests a divorce and meets the residency requirement.  Therefore, if you are concerned about the religious implications of divorce, your spouse can always file and would be the petitioner and will be granted the divorce even if you object to the entry of judgment of divorce.

Often people file legal separation in the hopes that healthcare coverage will continue if the parties are legally separated but not divorced.  Careful research should be done before pursuing legal separation for this reason.  In most cases, health insurance providers will not be contractually obligated to carry health insurance for the non-employee spouse if there is a legal separation judgment.

Filing for divorce or legal separation can be a daunting task.  There are a lot of considerations that must be carefully weighed before filing for legal separation, as many of the perceived benefits of legal separation are not actually beneficial in reality.  We have litigated countless divorce cases and many legal separation cases.  We have actually handled cases where parties legally separated and then also later divorced.  We offer a free, private consultation to discuss whether a divorce or legal separation is right for you.  Our office is conveniently located in Irvine across from the airport.  Contact us today.