May 26, 2005

Devries Column

Legal separation is one thing—divorce is another

This week’s question:
I have often wondered about the difference between a divorce and a legal separation. My husband and I are Roman Catholic and we don’t look kindly upon divorce. Can you explain the legal differences?

Amber A.
Almaden Valley

Dear Amber:
First of all, Amber, a word or two about terminology. Several years ago, the state legislature in Sacramento changed the Family Code terminology in this area a bit. A “divorce” is now technically a “dissolution of marriage” although the word “divorce” is still heard frequently.

You asked about the difference between a marital dissolution and a legal separation. There is a third type of marital proceeding also—an action for a judgment of nullity of marriage. (And now there are also actions for dissolution of a domestic partnership, legal separation of a domestic partnership and nullity of a domestic partnership, as well.)

In looking at a legal proceeding for dissolution of marriage compared with legal separation, the grounds are usually the same, “irreconcilable differences.” Often one spouse half-way jokingly wants to use the other ground—”incurable insanity,” but this ground is very rare.

So, the grounds are typically the same in a dissolution action versus a legal separation proceeding. The main difference is that with a legal separation proceeding, both parties are still legally married when the case is done. With a dissolution of marriage proceeding, the marriage is over and the parties are single. The marital status has changed, i.e., has been severed, with the dissolution proceeding.

Sometimes spouses choose to go the legal separation route because of religious or other personal reasons when they do not want the legal status relationship absolutely severed.

Another example is when the spouses are perhaps a bit older, may not want to marry someone else, and they want their marriage technically preserved so as to retain certain medical insurance benefits. It may be impossible for one spouse to obtain new medical insurance because of pre-existing conditions, for example. Also, the parties may have insufficient financial recourses to obtain conversion or replacement medical insurance coverage.

If one spouse files for legal separation, the other spouse can respond to the suit papers by requesting a dissolution of marriage and that will prevail. In other words, the first spouse cannot stop the other spouse from obtaining a dissolution of marriage. Both parties need to agree to the legal separation, except for a rare case when the proceeding may go by default.

And there is another difference. With a legal separation, there is no “waiting period” like there is with a dissolution of marriage case where you need to wait six months for entry of the final judgment of dissolution.

Having said the above, there are also many similarities between a legal separation and a dissolution of marriage.

The paperwork and cost are essentially the same. Typical issues include child support, spousal support, child custody and visitation issues, and community property rights and obligations.

The marriage bond is still intact with a judgment of legal separation. Of course, the parties may be “married” in name only, but the legal status may be important. If the spouses are legally separated, they cannot enter into a new marriage until the existing marriage is terminated by death or dissolution of marriage. Essentially, the judgment of legal separation determines their respective rights and duties from a financial point of view, including property and support rights.

After the judgment of legal separation is entered, the spouses obtain no further community property and they owe each other no further spousal duties or support, except as ordered by the court.

If one of the parties wants to obtain a judgment of dissolution of marriage later on, after a legal separation judgment is entered, he or she may do so. This would be a “status” action to dissolve the marital relationship. Either party may petition the court for this at any time. The cost at that time should be relatively low, since the primary issues have already been resolved.

So, those are the high points, Amber, as to the difference between legal separation and divorce, now called dissolution of marriage. And as I always say, your own attorney is best suited to help you understand all legal issues.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.