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Many people consider legal separation an option to divorce. The two, however, are substantially different. Legal separation is not a trial period or a prelude to dissolution of marriage. In fact, legal separation is a lawsuit, filed with the courts, giving the judge power to determine any and all issues related to your marriage. This may include division of assets and debts, child custody as well as visitation and support issues. The catch is that you will remain married.
So what are the differences between legal separation and divorce? First and foremost, legal separation (unlike divorce) requires an agreement of the parties. If there is no agreement, the paperwork filed with the court changes either to a divorce action or the parties drop the case altogether. In California, a divorce requires a 6 month waiting period from the time the documents are served (delivered) to the other spouse before the court grants a divorce. Legal separation can happen immediately. Additionally, a person who was legally separated may not remarry, since continue to be legally married.
So why file for legal separation? That is easier answered by asking why not to file for legal separation. Generally, we suggest you not file any court papers if you are considering reconciliation. There are actually narrow circumstances when legal separation is suggested: 1) if religious beliefs prevent the parties from divorce and neither party plans to remarry, 2) if there are significant implications to Social Security benefits, or 3) if serious health issues prevent a party from obtaining medical insurance (other than through their current spouse).
More often than not, legal separation is the not the right choice and is, at best, a temporary solution to marital difficulties.
Attorneys at Law