Legal Separation in AZ
Legal separation is an alternative to divorce for some married couples that are contemplating ending their marriage but for specific financial, religious, or emotional reasons simply do not want to actually divorce at this time. If you are considering either divorce or legal separation in Arizona, the following are answers to common questions to help you make the best decision for your unique circumstances.
What is Legal Separation in Arizona?
Legal separation in the state of Arizona will allow two spouses to completely divide their property, separate financially, determine child custody calculations, create a child custody and visitation schedule, live in separate places, however still remain legally married. A divorce will not only allow a couple to do accomplish those same goals but will also legally end their marriage. Ending a marriage can have consequences for a couple both emotionally, financially, and religiously. In some cases, couples may think that time apart could lead to reconciliation at a later time, or they do not want to divorce for religious reasons. In other cases, remaining married will allow one spouse to remain on the other’s health insurance plan.
What Are the Differences Between Divorce and Legal Separation in Arizona?
There are some notable differences between obtaining a legal divorce and legal separation in Arizona.
Both Spouses Need To Pursue and Agree to Legal Separation
While there are many different reasons a couple may consider legal separation it is important to note that both parties need to pursue a legal separation. The requirement of both spouses to pursue a legal separation in Arizona is different than that of divorce, where only one spouse needs to move forward and pursue a divorce in the state of Arizona.
Shorter Legal Process
It is possible that if both spouses agree on all issues that a legal separation can be an affordable, simple, and short process for both spouses, with a resolution in a matter of two or three months. While both a divorce and a legal separation in Arizona will need to include paperwork submitted to the court, a legal separation requires a Petition for Legal Separation, Service, and a Consent Decree of Legal Separation.
Actual Legal Divorce
The major difference between divorce and legal separation in the state of Arizona is that at the conclusion of the legal process, the spouses are legally divorced after a divorce, and not legally divorced after a legal separation. Divorce is a completely final division of two spouses legally. This means that if a couple is legally separated they are not free to marry another person or file taxes separately. However, a couple that is legally separated is able to still remain on one another’s health insurance plan.
What Are the Similarities Between Divorce and Legal Separation in Arizona?
At the end of both a divorce and a legal separation in Arizona, spouses will have accomplished the same goals, but in one they are legally divorced while in the other they are still married. A divorce and a legal separation in Arizona can both allow for the following:
- Both can allow for a mediation process
- Both can allow for legal representation by an attorney to ensure that the spouse’s legal rights are protected
- Both can divide property, assets, and debts
- Both can make determinations regarding child support calculations, spousal support, and child visitation (parenting plans)
- Both can involve either an amicable resolution or an adversarial court process
- Both can take the same amount of time if there are disagreements regarding the division of property, child support or child visitation issues, or other major matters.
At the end of the day, the only true difference between a divorce and a legal separation in Arizona is that at the end of one legal process a couple is legally divorced and in the other legal process, the couple remains legally married.
Can A Couple Get a Divorce After a Legal Separation in Arizona?
Yes. If a couple makes a decision at any time following their legal separation in Arizona that they want to become legally divorced, they simply need to file a Spitulated Motion To Convert Legal Separation To Divorce with the court. Once this document is signed by both spouses and approved by the court, a divorce will be final, and the spouses will no longer be legally married. All terms and agreements made under the legal separation will continue to be binding on both parties unless they are legally changed by a court order at a later time.
Why Choose a Legal Separation vs. Divorce?
There are many personal reasons that a spouse may want to choose a legal separation vs. a divorce. Some of these may include:
- A spouse believes there is a chance at reconciliation
- A spouse (or both spouses) have religious reasons for not wanting to pursue a divorce
- A spouse wants to remain on the other spouse’s health insurance
- There are financial benefits, such as tax reasons, that make filing for divorce financially detrimental to both parties
Ultimately, the decision to file for divorce or legal separation in Arizona is a personal one that can only be decided by the spouses themselves.
How Do You File For Legal Separation in Arizona?
The Arizona statue addressing legal separation is ARS § 25-313. Arizona requires that both spouses have been a resident of the state of Arizona for a minimum of 90 days. After this time, either spouse can file for a legal separation (either with or without children) in the county in which they reside. Similar to a divorce, a party must indicate a reason (called “grounds”) for requesting a legal separation in Arizona which can include any of the following reasons:
- The marriage is irretrievably broken
- One spouse wants to live separate and apart, and
- The other spouse does not object to the legal separation (if either spouse has an objection to a legal separation, the couple must then file for divorce instead of legal separation)
While a legal separation is not a permanent dissolution of a marriage, it still remains a significant legal step, and will result in a legal order by which both parties are bound.
What Is a Legal Separation From Covenant Marriage?
Legal separation from covenant marriage is slightly different from that of a standard legal separation in Arizona. This is more complicated legal process, however, it achieves the same result of both spouses remaining legally married when the legal separation occurs. Under ARS § 25-904, a legal separation from covenant marriage may occur if any of the following are determined by a judge:
- The respondent committed adultery;
- The respondent committed a felony with a punishment of imprisonment or death;
- The respondent abandoned the marital home for longer than one year;
- The respondent committed domestic abuse or violence;
- The respondent’s ill-treatment or temperament makes living together impossible;
- The respondent uses drugs or alcohol habitually; or
- Both spouses lived separately and apart for two years;
In these cases, the petitioner spouse (one who is requesting the legal separation in Arizona) must allege one of these grounds as well as provide evidence that proves their allegation. This type of legal separation does require an allegation of fault except for the last allegation that simply must show that both spouses lived separately for two years. There are many reasons a person may want to obtain a legal separation from covenant marriage including religious beliefs or for personal financial reasons.
What Is a Separation Agreement?
A separation agreement is a legally binding agreement made either by the spouses or by the judge during the legal separation process in Arizona. This agreement will contain all of the information regarding child support payments, spousal support payments, child custody, and visitation schedules, and how the division of marital property and debts will occur. Both spouses must sign on to this separation agreement in order for it to be legally binding.
Will Obtaining a Legal Separation Hurt My Chances of Getting Custody of My Children?
No. Courts will always look to the “best interest of the child” standard in both divorces and legal separations in Arizona. This means that a court will not concern itself with whether or not the proceeding is a divorce or a legal separation, but instead look to what is truly in the best interest of the child given the unique facts and circumstances surrounding the family structure of your particular family.
What Is a Trial Separation and How Is It Different Than a Legal Separation?
A trial separation is simply an agreement between two spouses to live physically separate for a period of time. Any decisions regarding payment of bills, child custody matters, or child support payments would have to come from a personal agreement between both spouses. A trial separation does not involve the courts and does not include any type of court intervention. There is no legal or formal agreement regarding the separation of the spouses, and no enforcement available if one spouse decides not to adhere to any established rules of the trial separation. Some spouses make the decision to try a temporary trial physical separation before moving forward with the divorce or legal separation process in Arizona in order to make a better determination whether or not they want to pursue legal action.
Learn How an Experienced Family Law Attorney Can Help You
The decision to divorce or legally separate in Arizona is a personal one. There are simply no right or wrong answers, but only attempting to make the best legal, financial, and emotional decision for your personal circumstances. Visiting with an experienced attorney can help you understand all of your legal options in order for you to make the best decision possible, and ensure your legal rights are protected whether you decide to divorce or obtain a legal separation. Consider taking our free mini-course that provides additional answers to commonly asked questions. While the course focuses on divorce, it may help answer some of your questions regarding child custody matters or other issues and help you make decisions between divorce and legal separation in Arizona. If you have additional questions or concerns, we would welcome the opportunity to discuss how we can help you. Learn how one of our experienced family law attorneys at My Modern Law in Scottsdale, Mesa, Peoria, or Phoenix, Arizona can provide you with answers to your questions and help provide you the information you need in order to decide if legal separation in Arizona is right for you. Contact us at (480) 470-7731 or online today.
