Law Office of Stephen W. Penn and Associates

The differences between divorce and legal separation

Frequently here at the Law Office of Stephen W. Penn and Associates in California, our clients, although experiencing serious marital problems, are not yet prepared to seek a divorce for a variety of reasons. In such a situation, a legal separation may be the answer.

As FindLaw explains, you can think of a legal separation as a marital timeout that gives you the opportunity to assess your overall situation and determine what further steps, if any, you may wish to take in the future. Unlike an informal separation, however, a legal separation gives you legal rights and protections.

Legal separation advantages

During your legal separation, you and your spouse remain married, but officially live apart. As in a divorce, the court issues rulings with regard to the following:

  • Child custody, visitation and support
  • Spousal support
  • Health and life insurance coverage for you and your children

While your legal separation may be your first step to an ultimate divorce, it also gives you and your spouse the opportunity to reconcile your differences. This may be a huge consideration if your religion prohibits or frowns on divorce. In addition, even if you and your spouse do not reconcile, you still benefit from the ability to file joint tax returns. Actually, the only thing you and (s)he cannot due while legally separated is to marry someone else. In all other respects you live as single individuals.

Filing for legal separation

You file for a legal separation in much the same way as you would file for divorce. Unlike in a divorce, however, California has no legal separation residency requirement. Your petition must contain one of the following "grounds" for your legal separation:

  • That you and your spouse or registered partner have irreconcilable differences
  • That because of these irreconcilable differences, your marriage or domestic partnership is irretrievably broken
  • Alternatively, that your spouse or partner suffers from incurable sanity

You must personally serve your petition on your spouse or registered partner if at all possible. Keep in mind that two dates apply to your legal separation. Its actual date is the one on which you or (s)he declares the intent to end the relationship and does something to evidence that intent, such as moving out. Its legal date is the one on which the court issues its order(s).

For more information, please visit this page of our website. 


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16360 Monterey Road #120
Morgan Hill, CA 95037

Phone: 408-776-1525
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  • SCBA | Santa Clara County Bar Association | EST 1917
  • State Bar Of California | California Board Of Legal Specialization | Stephen W. Penn
  • Henry P. Collada Memorial Award 2012