Divorce is not always the right choice for a couple. Some couples want to live apart but are not ready to end the marriage. Others have just moved to California and do not yet meet the state’s residency rules for divorce. In these situations, married couples can separate without divorcing by filing for legal separation.
Understanding Legal Separation
Legal separation does not end a marriage the way a divorce does. Instead, it lets spouses divide assets and decide child custody as if they were divorcing. For some couples, legal separation is a first step toward divorce or a way to decide whether they want one. Other couples never plan to divorce but still want to live apart.
When filing for legal separation, couples can either reach an agreement through mediation or ask the family court to make orders about:
- Property division
- Alimony or domestic partner support
- Child custody and visitation
- Child support
These issues are handled like a divorce, and the couple acts as divorced in every way except legally. This means neither person can remarry or enter a new domestic partnership, because the marriage has not been legally dissolved. A Legal Separation Lawyer in Orange County, CA, can help a couple decide which path fits their needs. Spouses can live apart, hold separate property, and follow a parenting plan while still being married in the eyes of the law.
Why Might a Couple Get a Legal Separation Rather Than a Divorce?
A couple may choose legal separation instead of divorce for several reasons, including:
- Residency and waiting period. To get a divorce in California, one spouse must have lived in the state for 6 months and in the filing county for 3 months. There is also a mandatory waiting period of at least 6 months before a divorce is final. Legal separation has neither requirement. Only one spouse needs to live in California, with no time minimum, and there is no 6-month waiting period. A couple can separate and hold court orders until they qualify to file for divorce or indefinitely.
- Religious or personal reasons. Some faiths or moral beliefs treat divorce as not allowed. Legal separation lets couples live apart without dissolving the marriage.
- Financial benefits. Because the couple stays legally married, they may keep certain marital benefits such as health insurance or some retirement and government benefits.
- Emotional reasons. Some couples avoid divorce to make things easier on a child or to keep some kind of relationship. Legal separation is a less final option.
- Time to decide. Legal separation can help couples who are unsure about divorce. It gives them time to reconcile or to decide whether to move forward.
2026 Marital Separation Update: You Can Now File a Joint Petition
California changed how couples can start a case. As of January 1, 2026, spouses who agree on everything can file one joint petition together instead of one spouse filing against the other.
A joint petition can be a calmer way to begin, since neither spouse is served with papers, but it does not finish the case on its own. You still must exchange financial disclosures and file a final judgment. You also cannot ask for temporary court orders in a joint petition. If you do not agree on every issue, one spouse can revoke the joint petition and the case continues in the standard way. For a legal separation, there is no 6-month wait once all issues are resolved.
The Process of Legal Separation
Getting a legal separation is very similar to filing for divorce. It usually includes these steps:
- Filing the petition for separation
- Serving the other spouse the papers (unless filing a joint petition)
- Disclosing shared and separate assets and debts
- Mediating a separation agreement or receiving court orders
- Finalizing the agreement through the court
An experienced Orange County family lawyer can make this process easier and guide a smoother mediation. They can also protect your rights and represent you if the case goes to court.
Filing for Legal Separation in Orange County
If you live in Orange County, family law cases for divorce, legal separation, and annulment are filed at the Lamoreaux Justice Center in Orange.
You start the case with the Petition (Form FL-100) and the Summons (Form FL-110). On the petition, you check the box for legal separation instead of divorce. If you have children under 18, you also file the UCCJEA form (Form FL-105).
As of January 1, 2026, the current filing fee is $435 (this is subject to change). If you cannot afford the fee, you can ask the court for a fee waiver.
After your spouse is served, they have 30 days to file a response. If they do not respond, you can ask the court for a default. Remember, no service is required for a joint petition. If you have questions about the process, a trusted Orange County divorce lawyer can help you understand your options and ensure each step is handled correctly.
FAQs About Legal Separation in California
How much does a legal separation cost in California?
The 2026 court filing fee is $435. That is not the only cost. There may be added filings, such as child custody or child support requests, plus other court costs if hearings are needed. Hiring an attorney also costs money, but it can make the case less stressful. Because legal separation is often faster than divorce, the legal cost is usually lower.
What are the three types of separation?
In California, there are three main ways to end or change a marriage or domestic partnership:
- Divorce: Filed on a no-fault basis. It can be uncontested or contested, and some couples qualify for summary dissolution, a faster form of divorce.
- Legal Separation: Does not end the marriage, but lets spouses divide assets and settle key issues until they qualify for or choose divorce.
- Annulment: Treats the marriage as if it never legally happened. It is only available for certain marriages.
What are the disadvantages of legal separation in California?
Because the marriage is not dissolved, you cannot remarry or enter a new partnership until you later divorce. It can also be hard to divorce later if you cannot locate your spouse.
How does marital separation impact my federal taxes?
Legally separated spouses are not treated as married for federal taxes, so you cannot file ‘Married Filing Jointly’. However, if you filed for legal separation and did not have a final legal decree by December 31 of the tax year, you will need to file as Married Filing Jointly or Married Filing Separately.
What are the grounds for legal separation in California?
Under California Family Code 2310, there are two grounds: irreconcilable differences or permanent legal incapacity to make decisions. Irreconcilable differences, sometimes called a no-fault separation, is the most common. The second ground was once called ‘incurable insanity,’ but the statute now uses the updated term and requires medical or psychiatric proof.
Can a legal separation be changed into a divorce?
Yes. Either spouse can convert a legal separation into a divorce, and the other spouse’s consent is not required. Once you meet the 6-month residency rule, you file an amended petition asking the court for a divorce.
Do both spouses have to agree to a legal separation?
No. Like divorce, legal separation is a right either spouse can use alone. The other spouse can take part in the case but cannot stop it from starting.
Determine Your Options for Separation
Choosing between divorce and legal separation is a hard decision for any couple. If you are unsure of your options, the attorneys at Quinn & Dworakowski, LLP, can walk you through them and help you and your spouse make an informed choice about your future. Our firm has 40 years of collective experience in family law, and we are proud to support families across Orange County. We understand the care these cases require. Contact our team today at (949) 660-1400 to see how we can make this process less stressful. Schedule a consultation.
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