Tracy Attorney Blog

Divorce (“Dissolution of Marriage”) vs. Legal Separation

Posted on 2016-04-26 14:34:33

Divorce (“Dissolution of Marriage”) vs. Legal Separation

Many clients are initially confused about what the difference is between a dissolution of marriage (hereafter “divorce”) and a legal separation. A divorce is one of the only ways to legally become a single person again in the eyes of the law, other than death of either spouse and judgment of a nullity of marriage. On the other hand, a judgment for legal separation does not result in the termination of marital status (meaning you’re not divorced). Under both procedures you can divide property, set custody and visitation, and adjudicate support.

Why choose a legal separation over a divorce? There might be several reasons why a person might choose a legal separation over a divorce. First, the parties might not meet the residency requirement for dissolution. A person must be a resident of the state for at least six months prior to filing a dissolution proceeding within the state and must be a resident of the county for at least three months immediately preceding the filing of a dissolution action. These residency requirements do not apply in a proceeding for legal separation. We sometimes recommend clients to initially file for legal separation if they do not meet these requirements and we can then convert the case to Dissolution when the requirements are met.  This is also advantageous because you can “count” the time from the legal separation towards the six month minimum time requirement for a dissolution.

Secondly, there could be religious reasons why one party might file for legal separation instead of divorce. If a person’s religious beliefs prevent them from seeking a divorce, a legal separation will provide the benefits of a divorce without terminating the status of being a married person.  This will enable them to seek a court order dividing property, set amounts for child and/or spousal support, set child custody orders, and make other necessary orders.

Thirdly, there could be other personal reasons such as their spouse maintaining their medical insurance. Since a legal separation does not terminate marital status, it leaves open the possibility of remaining eligible under your spouse’s health insurance policy.  Additionally, maintaining a marital status may be beneficial for financial purposes.  At times, the financial consequences of divorce including the maintenance of tax benefits, how health care will be handled, the operation of a joint business or property that you own together may make legal separation the right choice.

For more information regarding the difference between a divorce and legal separation contact us for a consultation with an attorney. 

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