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Legal Separation vs. Divorce in California

legal separation vs. divorce in californiaRomantic relationships can go bad and there may come a time when you decide you no longer wish to continue living with your spouse. If this occurs, there are three options under California law: annulling the marriage; a legal separation or a divorce.

There are important differences between these options, and you need to understand the rules for legal separation vs. divorce in California so you can decide what is right for you. An Irvine family law attorney at Brown & Charbonneau, LLP can provide you with guidance on your choices and help you throughout the process of separating from your partner. Call today to learn more about how we can represent you and protect your rights as you take the important step to move forward with your life.

Understanding Legal Separation vs. Divorce in California

The main difference between legal separation vs. divorce in California is that a divorce permanently dissolves the marriage. This means that you are no longer considered legally wed for tax purposes or for any other reason. When you have formally dissolved your marriage through the divorce process, each spouse can remarry someone new. If you decide you wish to get back together with your ex who you divorced, you will need to get a new marriage license and formally remarry each other.

A legal separation, on the other hand, does not legally and permanently dissolve your union. It allows you to separate temporarily and put an agreement in place that sets the rules for the separation. The agreement can address issues of custody, financial support and temporary division of assets. For example, your legal separation agreement could specify who gets to stay in the family house, how the home mortgage and other bills are paid, and where children will spend their time.

If you legally separate and decide to get back together, you do not need to remarry as you would if you were divorced. However, a legal separation does not entitle either spouse to get married to anyone else. Because you are still legally married when you are separated, remarrying someone else is prohibited under the law.

For many couples, a legal separation is a chance to see whether you would prefer to live apart or whether the marriage can be saved. For others, a legal separation is the first step down the path towards divorce. Still other couples will enter into a legal separation and remain separated on an indefinite or permanent basis while never formalizing the divorce.

A legal separation is not required as a condition of getting a formal divorce and some people will skip this step altogether and simply pursue a dissolution of their marriage.


Annulment is different from divorce and legal separation, because an annulment nullifies the marriage and it is as if you were never married at all. While many people may prefer an annulment, since they are not considered “divorced” when a marriage ends this way, there are a very limited number of circumstances when annulment is possible.

A couple’s marriage is considered legally invalid and will always be annulled if it was bigamous or incestuous. Annulment is also possible, but not automatic, if the spouse filing for annulment was under 18 at the time of the marriage; if either party was of unsound mind; if either party entered into the marriage under fraudulent conditions or as a result of force; or if either party is physically incapable of consummating the marriage. Because these situations are rare, most people will not be able to get an annulment and will instead need to decide between legal separation and divorce.

You need to decide which approach is the right one for you and your family. Brown & Charbonneau, LLP can help. Call today to schedule a consultation with an Irvine family law attorney who can explain your options and advise you through the process of separating from a romantic partner.