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Legal separation vs divorce in California
Evenpart · · 3 min read
In California, the same Petition (form FL-100) can ask for a divorce, also called dissolution, a legal separation, or a nullity. A legal separation lets a court divide property and make custody and support orders, but the spouses stay legally married and cannot remarry. Unlike a divorce, a legal separation has no minimum residency period. A court generally cannot grant a legal separation unless both spouses agree or the responding spouse does not participate in the case. A legal separation can usually be changed to a divorce later.
The three options on the Petition
The Petition, form FL-100, lets the person filing choose one of three types of case. Each type can include orders about property, debts, custody, visitation and support.
- Dissolution (divorce): ends the marriage, so both spouses become single and can remarry once the judgment ends marital status.
- Legal separation: settles the same issues as a divorce, but the spouses remain married.
- Nullity (annulment): declares that the marriage was never legally valid, based on specific grounds such as bigamy, incest, or certain conditions at the time of the marriage, like fraud or force.
Residency and switching to divorce later
To file for divorce, at least one spouse must have lived in California for six months and in the county of filing for three months before filing. A legal separation has no such waiting period; only one spouse needs to live in California.
This matters for people who recently moved. Family Code section 2321 allows a spouse who filed for legal separation to amend the Petition to ask for a divorce once the residency requirement is met. A responding spouse who meets the residency requirement can also respond by asking for a divorce instead. Amending can affect timing, including the six-month waiting period before marital status can end, so ask an attorney how it applies to your dates.
Legal separation generally requires both spouses
California does not require a spouse's agreement for a divorce. Legal separation is different. Under Family Code section 2345, the court may not grant a legal separation unless both parties consent, or the respondent has not appeared in the case, which is the default situation. If one spouse files for legal separation and the other responds asking for a divorce, the case can end up as a divorce.
Why some couples choose legal separation
People choose legal separation for religious or personal reasons, because they are not ready to end the marriage, or for financial reasons, such as trying to keep a spouse on an insurance or benefit plan. Benefit rules vary from plan to plan, and some plans treat a legal separation like a divorce, so check with the plan administrator before relying on this.
A legal separation still divides community property and can set support and custody. Earnings and debts after separation are generally separate. Because the spouses are still married, neither can marry or enter a domestic partnership with someone else. Questions about taxes, Social Security and inheritance can also differ from divorce, so get advice before choosing.
Your next steps
- Check whether you meet the six-month state and three-month county residency rules for divorce; if not, ask whether a legal separation that is later amended makes sense.
- Confirm with your health insurance or benefit plan how it treats a legal separation before relying on continued coverage.
- Talk with your spouse about whether both of you agree to a legal separation, since one spouse generally cannot get it over the other's objection.
- Consider speaking with an independent family-law attorney licensed in California about tax, benefit and timing differences.
Sources and legal basis
- California Courts Self-Help: Legal separation
- Form FL-100, Petition (Marriage/Domestic Partnership)
- Family Code section 2345 (consent to legal separation)
- Family Code section 2321 (amending to dissolution)
General information about California law as of October 30, 2026, not legal advice. Your facts and later changes in the law can change the answer. Evenpart is not a law firm. Contacting us does not stop or extend any deadline.