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Divorce and Legal Separation: What is the difference between the two and which option is right for me?

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Generally speaking, you can accomplish the same things in divorce and legal separation – calculating support, dividing assets, developing a plan on how to move forward as two households – the only difference is after divorce you are returned to the legal status of “single” whereas in legal separation you are still legally married.

So, why would someone choose to separate lives, finances, and assets, but remain married?

There are a variety of reasons:

Jurisdiction:

In California, you must be a resident of the state for 6-months and a resident of the county in which you intend to file for 3-months in order to be able to petition the court for divorce. These residence requirements do not apply to legal separation. Therefore, if you want to begin the process of legally dividing assets, determining child and spousal support, and moving things along but are not yet eligible to divorce in any particular jurisdiction, you can petition the court for a legal separation. Once you have been in the state and county long enough, you can amend you case to divorce and continue on the same trajectory.

Religion and beliefs:

Some people do not believe in divorce or their religion does not allow or recognize divorce. If this is the case for you, you can still invoke the legal protections for married parties living separate lives but remain legally married by legally separating. 

Taxes and other federal benefits:

Depending on your particular facts, there may be a tax benefit to being married. Some people choose to pursue legal separation instead of divorce so they may retain the tax benefits of filing joint tax returns. In addition, some people stay married so that one party may accrue a larger interest in the other’s social security benefits. 

What if my spouse filed for legal separation but I do not want to stay married?

If you have been served with papers requesting legal separation it is important to know that you do not ever have to stay married to the other party. If you would rather divorce and be returned to the legal status of single, you can request dissolution in your responding papers.  

Do I have to file for legal separation before I file for divorce?

No. This is a common misconception. Separation of the parties (also known as your date of separation) and legal separation are not the same thing, and therefore you do not have to file first for legal separation provided you meet the jurisdiction requirements mentioned above. 

There are a variety of things to consider when determining whether divorce or legal separation is right for you, and Hepner & Pagan LLP has several attorneys who are well-versed in this area and can help you determine what is right for your specific situation. 

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