Separation vs. Divorce: What's the Difference?

If your marriage isn’t working out, you may be wondering whether divorce is the right choice for you. However, legal separation is another avenue you might consider. While the two processes closely resemble each other, the legal effects of each are very different. Neither option is necessarily better than the other — the pros and cons of each should be carefully weighed depending on your specific circumstances.

What is the Difference Between Divorce and Legal Separation?

Divorce is the legal process of ending a marriage. The proceedings can be uncontested or contested. When a divorce is contested, it means one or more of the issues that must be determined is in dispute. Before a judge will sign the decree, spouses must reach an agreement concerning child support, custody, alimony, and property division. If the spouses cannot settle these issues, a judge will determine the outcome.

Legal separation permits a couple to divide their assets, decide custody issues, and determine financial matters. Although it also allows spouses to go their own ways, a marriage is not legally dissolved with separation. Notably, unlike a divorce (which can be granted if only one party wishes to end the marriage), both spouses must agree to legally separate.

Different Types of Separation

Knowing the difference between separation and divorce can be confusing. There are also different kinds of legal separation, which can make these matters even more difficult to understand. The types of separation in California include the following:

• Trial separation — A trial separation occurs when you and your spouse decide to try living apart for a while. It’s not a permanent arrangement. Rather, it’s a test to determine if living apart is the right choice before you proceed with a formal legal separation. Whether or not you ultimately reunite with your spouse, your assets and debts remain marital property during the time you spend apart since a trial separation isn’t typically recognized by courts.
• Living separately and apart — As of a change in the law in 2017, California considers a couple to be living “separately and apart” even if they live under the same roof while preparing to divorce. Importantly, living separately and apart changes your property rights in California. Unlike some states, any debts incurred or assets acquired while living separately and apart count as separate property or debt. This is treated in the same way as property you possessed before the marriage.
• Permanent separation — Spouses who do not reunite after a trial separation usually part ways permanently. The law refers to this as “permanent separation.” This can also occur if you decide not to undergo a trial separation. In such cases, as soon as you start living apart, you’re permanently separated. A permanent separation is not considered a legal separation unless a party files for legal separation instead of divorce.
• Legal separation — This is a situation where you file for separation officially, whereupon the state provides for property division, spousal and child support, child custody, and visitation. While you do not formally divorce by filing for a legal separation, you want a court order that treats you as if you are divorced.

Just as with divorce, a legal separation involves filing paperwork with the court and serving a copy of the documents on your spouse. If your spouse agrees to the separation, an Appearance, along with the stipulations and waivers can be filed with the court. Your separation will be official once the court has processed and executed these documents. But in the event your spouse contests the separation, mediation may be helpful — otherwise, your only option to move forward might be a contested divorce.

Reasons to Separate Instead of Divorce

There can be many reasons you and your spouse might choose to separate, rather than divorce. Legal separation is very similar to divorce in that it allows spouses to live apart, divide their assets, define co-parenting matters, and receive spousal support. But it does not completely dissolve the marriage and neither party can remarry. In addition, when spouses legally separate, they can retain many of the tax and medical insurance benefits they had during the marriage — these benefits are no longer available when a marriage is terminated with divorce.

Apart from the benefits that can be retained in a separation, it’s essential to be aware that California has a residency requirement for divorce. To terminate a marriage, one of the spouses must have lived in California for at least six months and in the same county for three months. If neither spouse meets these requirements, the couple might separate in the meantime.

Another reason couples may choose separation over divorce include religious or philosophical beliefs. As some religions do not allow divorce, legal separation can provide an alternative that does not conflict with the doctrine they follow.

Contact an Experienced Fresno Divorce and Family Law Attorney

If you are thinking about ending your marriage, it’s critical to consider whether separation or divorce is best for your situation. A knowledgeable divorce and family law attorney can discuss your circumstances and advise you regarding your legal rights. Providing compassionate counsel and reliable representation, The Law Offices of Rick D. Banks has been helping clients throughout Fresno and the surrounding area with their divorce and family law matters for over 20 years. To schedule a no obligation consultation, call (559)222-4891.