Legal separation

If you can’t or don't want to get a divorce, but want to legally separate your property and finances, you can ask for a legal separation. 

Legal separation basics

In a legal separation, you stay married but the court divides your property and debts and makes orders about financial support. If you have children together, you can also ask for orders about their care and support.  You can ask the judge to make orders about:

  • The division of your property
  • Who will be responsible for paying debts
  • Spousal or domestic partner support
  • Child custody and visitation (parenting time)
  • Child support

If lawyers are involved, you can ask for orders about who will pay their fees. 

If you legally separate, you can't marry or enter into a domestic partnership with someone else.

Why someone might choose legal separation

Some couples don't want to get divorced for religious reasons, personal beliefs, or financial reasons. For example, they stay married to keep a spouse or domestic partner on an insurance or benefit plan.

Sometimes a spouse files a legal separation because they don't yet qualify for a divorce. To divorce, spouses must meet the divorce residency requirements

  • Divorce residency requirement: Before filing for divorce, one of the spouses must have lived in California for the past 6 months and at least 3 months in a county where the case is to be filed. 

To file for a legal separation, only one spouse must live in California. There's no time requirement. 

If a spouse wants a divorce and doesn't want to wait to meet the residency requirements, they can file papers (a petition) to ask for a legal separation. Then, once they meet the residency requirements they can change (amend) the petition to ask to a divorce.

If your domestic partnership is registered in California, there is no residency requirement to file for divorce or legal separation. Neither domestic partner needs to live in California.

But if neither of you currently lives in California, the court may not be able to make orders about other issues like property and debt, domestic partner support, or your children. If this is your situation, talk to a lawyer with experience in domestic partnership laws.

 

You can usually change a legal separation to a divorce. 

If you ask for a legal separation and decide before its final that you want a divorce, you may be able to change your case to a divorce. If your spouse filed for legal separation but you want to divorce, you can respond by saying you want a divorce.
 

Divorce and legal separation court process: How are they different

The steps to get a legal separation or divorce are the same. You use the same court forms and follow the same set of instructions. The main differences:

  • On your court forms, you will check the boxes that say legal separation
  • The residency requirement for married couples - one of you must live in California, but there's no time requirement
  • There's no 6-month waiting period. The earliest a couple can divorce is 6 months from the day the other spouse was served divorce papers or responded in court. This is a waiting period. There isn't one for a legal separation.
  • When it's final, you are still legally married

Talk to a lawyer or a Family Law Facilitator or Self-Help Center if you have more questions.