Divorce laws vary from state to state. For that reason, many questions arise when a couple decides that divorce in inevitable in their situation. One common question divorcing couples ask is whether or not California family law requires them to separate before a divorce, and whether or not they need a legal separation. The answer to both of these questions is no. However, like most legal questions, the answer is rarely that simple.
California’s 6-Month Waiting Period Before Divorce
Though California does not require a legal or physical separation before divorce, it does require a six-month waiting period. This means a divorcing couple may file for divorce the moment they decide the marriage has ended, but they must wait six months for the divorce to become final. This “cooling off” period is meant to give a couple time to be sure that their marriage is irretrievably broken.
There are no exceptions to this California divorce law even if it takes weeks or months for one party in the divorce to be successfully served divorce papers. The 6-month period begins only after the non-filing party officially receives the notice or summons.
Because of California’s lengthy waiting period between filing and finalizing, many couples turn to legal separation.
How a Legal Separation Can Help in a California Divorce
While it’s true that there is no requirement for a legal or physical separation period before filing for divorce in California, many divorcing couples turn to legal separation as a solution during the waiting period. Many couples file for legal separation at the same time they file for divorce since the separation legalities progress immediately while the divorce requires a six-month waiting period. A legal separation helps in the following ways:
- It addresses and resolves issues of child custody and child support that may not comfortably wait for six months
- It addresses the complex matter of property division according to California’s community property law for divorce which mandates that all property and debts accumulated during the marriage are equally divided
- It addresses spousal support during the 6-month waiting period
- It may benefit each individual to feel more independent from the other party by having the separation in legal terms
- It provides a period of time for children to become reconciled to the divorce and new child custody arrangements
- In some instances, a couple may decide during their legal separation and 6-month waiting period that they want to reunite, in which case they don’t need to remarry if they were only legally separated
Addressing these critical legal issues during a legal separation also makes the divorce proceed faster because the issues of custody, child support, and division of property are already resolved once the six-month waiting period has ended. If a couple cannot come to terms for a legal separation agreement, a family court will resolve the matter just as it does in a divorce.
Important Distinctions Between Legal Separation and Divorce
Though a legal separation settles the matters of separation of marital and individual assets, custody, child support, and spousal support just as in a divorce, during a legal separation the couple remains legally married. This means the following differences between legal separation and divorce are important to understand:
- You cannot remarry until your divorce become final even if you have a legal separation agreement
- You may still be required to keep a spouse on your healthcare plan while legally separated
- Legal separations don’t expire so you can take as much time as you need to decide whether or not to proceed to a divorce
- Some couples choose an indefinite legal separation instead of divorce for a variety of reasons including religious beliefs that don’t allow divorce
If you have questions about choosing legal separation and/or divorce in California, an experienced Los Angeles family law attorney can help you.