In California, a divorce (legally called a dissolution of marriage or domestic partnership) ends your marital or registered domestic partnership status. A legal separation does not: you stay legally married or partnered, but you and the court can still divide your property and debts and make orders about support, custody, and parenting time.
The biggest differences between divorce and legal separation are status, timing, and agreement. Only a divorce lets you remarry. A divorce has a residency requirement and a six-month minimum waiting period, while a legal separation has no minimum residency period or waiting period. In addition, the court cannot grant a legal separation without both parties’ consent, unlike a divorce.
If you are facing this choice, it can feel like a lot at once. This guide takes it one step at a time.
Key takeaways
- A divorce ends the marriage or partnership. A legal separation keeps it in place, so neither of you can remarry or register a new domestic partnership.
- Both processes can resolve property, debts, support, child custody, and parenting time.
- A divorce usually requires that one of you lived in California for six months (and in the filing county for three), and it has a six-month minimum waiting period. A legal separation has no minimum residency period and no waiting period.
What issues are decided in both?
Whether you choose legal separation or divorce, the same California rules apply to:
- Property and debts. Unless you agree otherwise, the court divides the community estate equally. See property division.
- Support. The court can order child support and support for a spouse or domestic partner. See child and spousal support.
- Children. The same laws govern child custody and parenting time.
The grounds are also the same: irreconcilable differences that have caused the irremediable breakdown of the marriage, or permanent legal incapacity to make decisions (Family Code section 2310).
Legal separation vs. divorce: side-by-side comparison
| Issue | Legal separation | Divorce |
|---|---|---|
| Ends the marriage or partnership | No | Yes |
| Free to remarry | No | Yes, once the judgment is final |
| Divides property and debts | Yes | Yes |
| Support, custody, and parenting time orders | Yes | Yes |
| Residency requirement | No minimum time, but one spouse must live in California | Six months in California and three months in the county, with exceptions |
| Minimum waiting period | None | Six months before marital status ends |
| Other party must consent to the judgment | Yes, if they appear in the case | No |
| Forms to start | Petition (FL-100) or joint petition (FL-700) | Petition (FL-100) or joint petition (FL-700) |
How are legal separation and divorce different?
Residency
To file for divorce, one of you must have lived in California for the last six months and in the filing county for the last three months (Family Code section 2320). There are two exceptions:
- If your domestic partnership is registered in California, the usual residency rules do not apply to filing here.
- Same-sex spouses who married in California but live somewhere that will not dissolve their marriage may file in the county where they married. Learn more about same-sex divorce.
A legal separation has no minimum residency period, though one spouse must live in California, according to the courts’ Self-Help Guide on legal separation. If you have not lived here long enough for a divorce, you can file for legal separation and later amend your petition to request one (Family Code section 2321).
Waiting period
Your marital status cannot end in a divorce until at least six months after the other party is served or first appears in the case, whichever comes first (Family Code section 2339). A legal separation has no waiting period.
Consent
A court cannot enter a legal separation judgment without both parties’ consent, unless the other party has not made a general appearance in the case (Family Code section 2345).
Why do some couples choose legal separation?
Depending on your situation, some parties choose legal separation for the following reasons:
- Religious or personal beliefs.
- Health insurance. Some plans may let a legally separated spouse or partner stay covered, but it depends on the plan.
- Social Security. Benefits on a former spouse’s record generally require a marriage of at least 10 years before the divorce is final. If you are near that mark, ask Social Security or a financial adviser about timing.
- Immigration timing. If an immigration status or application depends on the marriage, talk with an immigration attorney before filing.
- Family reasons, such as wanting more time before a permanent decision.
Legal separation may also change things you expect to stay the same. For federal tax filing status, the IRS considers you unmarried for the whole year if, on the last day of the year, you are legally separated under a separate maintenance decree, and state law determines whether that applies (IRS Publication 501). Ask a tax professional how this affects you.
Why does the date of separation matter?
Your date of separation is when a complete and final break in the marriage occurred, shown by both a spouse’s expressed intent to end the marriage and conduct consistent with that intent (Family Code section 70). It matters equally in a legal separation and a divorce:
- Property. Earnings and property acquisitions with these earnings after that date are generally separate property (Family Code section 771).
- Spousal support. Marriage length is measured to the date of separation, and a marriage of 10 years or more is presumed to be of long duration, which can affect how long the court keeps authority over support (Family Code section 4336).
Read more about determining your date of separation.
Is there a simpler way if you both agree?
- Joint petition. Since January 1, 2026, spouses and registered domestic partners who agree on all final terms can file one joint petition (form FL-700) for divorce or legal separation. You cannot request temporary orders this way, and either of you can revoke the joint process before the judgment is final.
- Summary dissolution. This simplified divorce is limited to couples who meet strict conditions, including a marriage of five years or less at separation, no children together, no real estate (apart from certain leases), limited property and debts, and a spousal support waiver. Residency rules and the six-month wait still apply.
- Registered domestic partners who meet similar conditions may instead end a California partnership by filing a notice with the Secretary of State, effective six months after filing.
How do you start a divorce or legal separation in California?
- Choose your request. The same Petition (form FL-100) is used for both, and you indicate whether you want a divorce or a legal separation.
- File the Petition with a Summons (form FL-110) and, if you have children under 18, a child custody jurisdiction declaration (form FL-105).
- Serve your spouse or partner. The Summons explains that they have 30 days to file a Response (form FL-120).
- Follow the orders on the Summons. While the case is pending, standard restraining orders limit certain financial changes, such as changing beneficiaries on insurance, though you can still make or change a will.
- Resolve the issues by agreement with counsel, third party neutrals, or with the court’s help, then request a judgment.
Update your estate plan either way
- In California, a final divorce or termination of a registered domestic partnership generally revokes gifts in your will to the former spouse or partner, and their nomination as executor or trustee, unless the will says otherwise (Probate Code sections 6122 and 6122.1).
- A legal separation does not end the relationship, so those automatic revocations do not apply. Gifts to your spouse or partner in an existing will may stay in effect.
- Beneficiary designations, trusts, powers of attorney, and health care directives also deserve review. Because some changes are restricted while a case is pending, coordinate the timing with your attorney.
For more, see updating your estate plan when going through a divorce.
Frequently asked questions
Can I get a legal separation if my spouse wants a divorce?
Usually not. If your spouse or partner makes a general appearance in the case and does not consent, the court cannot enter a legal separation judgment (Family Code section 2345). They can respond by asking for a divorce, which can move forward once the residency requirement is met.
Is there a residency requirement for legal separation in California?
There is no minimum residency period, though one spouse must live in California. A divorce requires that one of you lived in California for six months and in the filing county for three months. If you recently moved here, you can file for legal separation and later amend your petition to ask for a divorce.
Can a legal separation be changed to a divorce later?
Often, yes. If you decide before the legal separation is final, you may be able to amend your case to request a divorce. If a legal separation judgment has already been entered, you are still married, and ending the marriage would require a divorce judgment, so talk with an attorney about next steps.
Do these rules apply to registered domestic partners and same-sex spouses?
Yes. Registered domestic partners follow the same procedures and have the same rights as spouses in a divorce or legal separation, with limited exceptions (Family Code section 299). Partnerships registered in California are not subject to the usual residency rules for filing here, and same-sex spouses married in California who live where they cannot divorce may be able to file in the county where they married.
How JKZ LLP can help
Choosing between legal separation and divorce is deeply personal, and you do not have to decide alone. Our family law attorneys offer compassionate, practical guidance to spouses and registered domestic partners, including same-sex couples, whichever path you choose. With offices in San Francisco, San Diego, Santa Cruz, and Chico, we serve domestic and international clients in English, Spanish, Russian, Arabic, and French. Call 415-693-0550 or contact us online.
This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship.