Legal Separation
How to Survive the Break-up

Can I get a legal separation instead of a divorce?

Yes, but in California, this can happen only if both you and your spouse agree to a legal separation. If you file a Petition requesting a legal separation, and your spouse files a Response requesting a dissolution (divorce), you cannot stop your spouse from getting the divorce.

What is the difference between a legal separation and a divorce?

If both spouses agree to a legal separation, the community property will be divided, and orders will be made for spousal support, child custody and visitation, and child support. The Judgment of Legal Separation will look almost the same as a Judgment of Dissolution, except that the marital status is not terminated. This means that neither spouse can remarry. Also, the Internal Revenue Code does not permit a joint income tax return to be filed after a Judgment of Legal Separation.

Why would someone want a legal separation?

Some people have moral or religious objections to divorce, and therefore want a legal separation instead of a divorce. Or, a spouse may want to stay on the other spouse’s health insurance, because of problems with insurability. However, a Judgment of Legal Separation may be treated by some health plans as equivalent to a divorce, and may disqualify the spouse from coverage as a dependent.

If my spouse and I are living in separate residences, are we legally separated?

To attorneys and to the Internal Revenue Service, the term “legally separated” means that you have obtained a Judgment of Legal Separation. If you are living apart, but no Judgment of Dissolution of Marriage or Judgment of Legal Separation has been filed, you are considered "married living apart."