California Legal Separation Agreement
California grants a court judgment of legal separation, with no residency requirement to file, so a couple can stay married while living apart and later convert it to a divorce. Attorney review available.
Find out where you stand in California
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Introduction
California grants a court judgment of legal separation, so a married couple can formally separate through the court while staying legally married and unable to remarry (Cal. Fam. Code 2345). One reason to choose it is that California imposes no residency requirement to file: the six-month state and three-month county residency rule in Cal. Fam. Code 2320 applies to a judgment of dissolution of marriage, not to a legal separation, so a spouse who has just moved to California and cannot yet file for divorce can file for legal separation and still obtain court orders on support and parenting. A California judgment of legal separation requires the consent of both parties, unless one party has not made a general appearance and the petition is one for legal separation (Cal. Fam. Code 2345), a consent rule that a divorce does not share, since a court can grant a dissolution over one spouse's objection. A legal separation does not end the marriage, and it does not close off a divorce later: a judgment of legal separation does not bar a subsequent judgment of dissolution filed by either party (Cal. Fam. Code 2347), which is how a California separation converts to a divorce. Couples choose it to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security spousal benefits, for religious reasons, or as a trial step before deciding to divorce. In a legal-separation judgment the court can order spousal support that is just and reasonable based on the standard of living during the marriage, weighing the factors in Cal. Fam. Code 4320 (Cal. Fam. Code 4330). The division of the community estate works the same way it does in a divorce (Cal. Fam. Code 760, 2550), so rather than repeat it here, those terms belong in a California Marital Settlement Agreement; if you decide to end the marriage instead, the pleading that starts it is a California Divorce Petition. DocDraft builds your California legal separation agreement from your facts, with attorney review available before you sign.
Key Things to Know
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California grants a court judgment of legal separation, so a couple can formally separate through the court while staying legally married; neither spouse may remarry, and the marriage ends only through a later divorce (Cal. Fam. Code 2345, 2347).
- 2
California imposes no residency requirement to file for a legal separation. The six-month state and three-month county residency rule in Cal. Fam. Code 2320 applies to a dissolution of marriage, so a spouse who does not yet meet it can file for legal separation and still obtain court orders.
- 3
A California judgment of legal separation requires the consent of both parties, unless one party has not made a general appearance and the petition is one for legal separation (Cal. Fam. Code 2345). A divorce, by contrast, can be granted over one spouse's objection.
- 4
A California legal separation does not end the marriage and does not bar a later divorce. A judgment of legal separation does not prevent a subsequent judgment of dissolution filed by either party (Cal. Fam. Code 2347), which is how a separation converts to a divorce.
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Couples choose a California legal separation over divorce to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security spousal benefits, for religious reasons, or as a trial step before deciding to divorce.
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In a California legal-separation judgment the court can order spousal support on the same basis as in a divorce, an amount that is just and reasonable based on the standard of living during the marriage and the factors in Cal. Fam. Code 4320 (Cal. Fam. Code 4330).
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The division of the California community estate is the same in a legal separation as in a divorce (Cal. Fam. Code 760, 2550), so those terms belong in a marital settlement agreement rather than the separation itself; see the California marital settlement agreement page.
Key decisions before you file
Before you file a Legal Separation Agreement in California, a few decisions shape the document: which option to choose and what each one means. The Legal Separation Agreement guide walks through them.
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California Requirements for Legal Separation Agreement
Court Judgment of Legal Separation
California grants a court judgment of legal separation (Cal. Fam. Code 2345). The couple stays legally married while living apart, and neither spouse may remarry. The marriage ends only through a later divorce.
No Residency Requirement to File
California imposes no residency requirement to file for a legal separation. The six-month state and three-month county residency rule in Cal. Fam. Code 2320 applies to a dissolution of marriage, so a spouse who does not yet meet it can file for legal separation and still obtain court orders.
Both Parties Must Consent
A California court may not render a judgment of legal separation without the consent of both parties, unless one party has not made a general appearance and the petition is one for legal separation (Cal. Fam. Code 2345). A divorce, by contrast, can be granted over one spouse's objection.
Conversion to a Later Divorce
A California judgment of legal separation does not bar a subsequent judgment of dissolution filed by either party (Cal. Fam. Code 2347). A spouse who wants to end the marriage files a petition for dissolution once the residency requirement in Cal. Fam. Code 2320 is met.
Spousal Support in the Judgment
In a judgment of legal separation the California court can order spousal support that is just and reasonable based on the standard of living during the marriage, weighing the factors in Cal. Fam. Code 4320 (Cal. Fam. Code 4330). This is the same standard used in a divorce.
Community Property Division
Property acquired during the marriage is community property and is divided equally absent the parties' own written agreement (Cal. Fam. Code 760, 2550). Because this is the same division used in a divorce, set it out in a California marital settlement agreement rather than in the separation itself.
Reasons to Choose Separation Over Divorce
A California legal separation keeps the marriage in place, which can preserve a spouse's health insurance, help reach the ten-year mark for certain military and Social Security benefits, or serve religious or trial-step reasons. Confirm insurance effects with the plan, since many treat a legal separation like a divorce.
Separation Versus Marital Settlement Agreement
A California legal separation sets the couple's marital status; a marital settlement agreement is the contract that divides property and sets support and is used in both a separation and a divorce. Keep the money and parenting terms in the marital settlement agreement and rely on the legal separation for status.