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Differences Between Legal Separation and Divorce


When a couple decides to formally end their marriage or domestic partnership, they have two legal options available to them in California: legal separation and divorce. Our qualified Orange County, California divorce lawyer can go over the differences between the two and aid you in your decision.

Importance of a Court Decision

Some couples may think that if they are experiencing an amicable break up of their marriage, there is no need to get the courts involved. However, they often don't realize that without a court decision, one member of the marriage may be unreasonably held liable for actions and / or debts incurred by the opposite member. Living apart does not constitute a legal separation. A judge's ruling is needed to officially divide assets and responsibilities between the parties involved.

A judge can make decisions during a legal separation or divorce including:

Representation from our knowledgeable Orange County divorce attorney can help safeguard your rights, maintain equitable finances and help see to it that you are treated fairly.

Legal Separation

A legal separation is a court matter that will decide the division of assets, child care and custody, and financial obligations. Both parties involved must agree to the legal separation. If a member of the marriage or domestic partnership contests the process, then divorce is the only recourse available for the petitioning party.

Couples may opt for legal separation instead of divorce due to a variety of reasons. These may include religious beliefs or financial necessities such as maintaining health, Social Security or military benefits.

Divorce in California

California is a no-fault state. As far as the legal system is concern, there is no guilty party with regards to dissolution of marriage or domestic partnership. Either spouse may file for divorce citing irreconcilable differences. Both parties do not have to agree to the end of the marriage or domestic partnership in order for a divorce decree to be issued.

Official Date of Separation

A main component of legal separation and divorce is an official date of separation. Once this date is established, parties are typically sheltered from financial liabilities of the opposite spouse. Conversely, any new assets accrued are shielded from property division. A binding premarital or postnuptial agreement, however, may override some of these protections. A skilled divorce lawyer, such as W. Douglas McKeague , can assess your situation and provide you with advice on what's best for your situation.

Legal separation vs. divorce – Which one is right for you?

Deciding upon which way to legally dissipate your marriage or domestic partnership depends on an assortment of factors and qualifications. Understanding the key differences between them can aid you in making your decision.

Residency requirements: One of the spouses must have maintained residency in California for at least six months to file for a divorce. If either party is unable to meet this requirement, they must file for legal separation. Either spouse may file for an "amended petition" requesting a divorce once their time of residency has been accrued.

An exception to this requirement is made for same-sex couples who married in California, but do not currently live in the state. If their current state of residence will not dissolve their marriage, then the couple may file for divorce within the county in which they were married.

Benefits Coverage: A party in a legally separated couple may still qualify for coverage under their spouse's health care plan. They may also be eligible to receive certain military and Social Security benefits. If a couple is divorced, these benefits will most likely no longer apply.

Waiting Period: Divorce in California requires a six-month waiting period before the decree can be issued. There is no such delay for legal separation.

Marrying Someone Else: If an individual wishes to marry another party, they must be divorced. You cannot marry someone else if you are legally separated.

Tax Status: A couple that is legally separated, must still file as a married couple. Oftentimes, they will choose "married filing separately" as their tax status. Divorced couples can no longer file joint returns.

Making the Big Decision - Contact the Law Offices of W. Douglas McKeague

As you most likely have surmised, the choice between legal separation and divorce is a big decision. Having the counsel of our experienced divorce attorney can be an advantage when navigating through this decision and subsequent legal proceedings. At the Law Offices of W. Douglas McKeague, we can provide you with our Orange County divorce attorney dedicated exclusively to family law.

Contact us today for your free case evaluation !

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