Couples in California who are struggling in their marriage sometimes ask, “Do we have to get divorced, or can we separate instead?” The answer depends on your goals—financial, personal, or legal. Understanding the differences between legal separation in California and divorce can help you make the best decision for your future.
At the Law Offices of David Knecht, we help clients weigh their options and choose the legal path that aligns with their needs, values, and long-term plans.
Key Differences Between Legal Separation and Divorce
- Marital status
A divorce legally ends your marriage. You are free to remarry once your divorce is final. A legal separation, on the other hand, does not dissolve your marriage—you remain legally married, even if you live apart. - Religious or personal reasons
Some couples choose legal separation instead of divorce because of religious beliefs, moral concerns, or a desire to keep the family legally intact while living separate lives. - Timing of benefits
Staying legally married may help one spouse remain eligible for important benefits that could otherwise end with divorce. - Health insurance eligibility
Most employer-sponsored health plans end spousal coverage at divorce, and many now treat legal separation the same way. Whether coverage continues depends entirely on the employer’s rules. While some plans allow a legally separated spouse to stay on the policy, others do not. If coverage ends, your ex-spouse may qualify for COBRA continuation for up to 36 months, but they must elect it within 60 days and pay the full premium, as noted by Insurance Informant. - Residency requirements
To file for divorce in California, one spouse must have lived in the state for at least 6 months and in the county of filing for at least 3 months. There is no residency requirement for filing for legal separation in California. This makes legal separation a useful option for newly relocated spouses or for those who want immediate legal relief while waiting to qualify for divorce. - Social Security spousal benefits
- Remaining married for at least 10 years may preserve your eligibility to receive Social Security benefits based on your spouse’s earnings record. According to the Social Security Administration divorced individuals who meet this 10-year marriage requirement and are at least 62 years old may qualify for benefits—even if their ex-spouse hasn’t begun collecting yet
- You can collect benefits on your ex-spouse’s record as long as your ex is eligible and you also meet all other requirements: you are currently unmarried, and the benefit you would receive on your own work record is less than what you’d receive based on your ex’s. (AARP)
What Legal Separation and Divorce Have in Common
- Property division
Whether you legally separate or divorce, California law requires fair and equitable division of community property and debts. - Spousal support
Courts can award spousal support (alimony) in both divorce and legal separation proceedings, based on the same factors—like income, length of marriage, and financial need. - Child custody and support
Both processes allow the court to issue enforceable orders for child custody, visitation, and support. These can be just as detailed and binding in a legal separation as in a divorce. - Court involvement
Legal separation is not just “taking a break.” It requires filing legal paperwork, serving your spouse, and going through a legal process that results in court orders. It’s a formal status change under California law. For example, under California Family Code § 2310, a spouse must cite irreconcilable differences or incurable insanity as grounds—just like in divorce.
Why Choose Legal Separation in California?
- To stay on a spouse’s insurance plan if allowed by the plan
In limited cases, some employer-provided plans allow a legally separated spouse to remain on insurance, but this is becoming less common. Divorce almost always ends eligibility. - To preserve eligibility for military or Social Security benefits
If you’re close to the 10-year mark for military retirement benefits or the 10-year requirement for Social Security spousal benefits, remaining married while separated can help preserve rights. See Social Security’s rules for divorced spouses and AARP’s breakdown for more detail. - To give space without finality
Legal separation offers couples time and structure to work through issues—financially and emotionally—without committing to permanent divorce. In some cases, it becomes a stepping stone to reconciliation. In others, it leads to divorce later. - To protect finances during separation
Filing for legal separation allows the court to issue temporary orders for support, property use, and parenting—even if you’re not ready to divorce.
If you’re exploring legal separation in California, it’s important to understand that this is a serious legal status—not just a casual agreement. Your rights and obligations will be defined by court orders, just like in divorce.
Need Help? Contact the Law Offices of David Knecht
Whether you’re considering separation or divorce, we can help you understand the legal implications and make a plan that protects your future. Call us at (707) 451-4502 to schedule a consultation.
