LEGAL SEPARATION VS. DIVORCE
LEGAL SEPARATION VS. DIVORCE
Should I get a legal separation or divorce?
Her husband’s behavior was completely unacceptable. He had literally ignored her for months. He was hiding money. He was staying out to all hours of the night. He was monitoring her behavior as if she had done something wrong. He was critical, negative and mean. She didn’t want a divorce, but she knew his behavior needed to stop. She was very religious and committed to marriage. She wanted a better relationship, there wasn’t someone else she wanted to be with. She hoped that filing for legal separation would be the wake-up call he needed to understand that she would not continue to tolerate toxic, combative, behaviors.
Many clients ask if a legal separation is a good option for them. If you are considering a legal separation, it is important to understand the legal consequences, as well as the benefits and risks of an Arizona legal separation vs. an Arizona divorce.
The procedure for obtaining a legal separation is the same as a divorce, and will be discussed below. Legally, most of the same rules and laws apply, except at the end of the day, you are not free to remarry. In both a legal separation and divorce, the court will distribute final orders that stipulate division of spousal assets and debts, legal decision-making and parenting time determinations, and details regarding spousal support and/or child support. The marital community will be severed when the Petition for Legal Separation is served upon the other spouse.
There is no residency requirement to file for a legal separation. In the event you needed to protect property but didn’t qualify for residency to file for divorce, you could file for legal separation.
Both spouses must agree to a legal separation. If one spouse objects, the action will be converted to an action for divorce as soon as the residency requirement has been satisfied.
In both legal separation and divorce, the obligations and rights between the two spouses are terminated under Arizona community property law. However, legal separation does not restore the right of either spouse to remarry. Of course in divorce, each spouse walks away “single” and is free to remarry if he or she wishes.
Although orders will be given by the court in both situations, there are some reasons why a legal separation may be preferable to a divorce. For example, a couple may not actually be sure they want to end the marriage. Some couples try legal separation as a “trial” to see whether they wish to terminate the marriage or attempt to work things out. Other issues may exist, like concern over continuous healthcare coverage, or religious beliefs regarding divorce.
While many people who become legally separated ultimately dissolve their marriage, this is certainly not true for everyone. Arizona law states that in a legal separation, the marital community is severed and any property acquired by a spouse after serving a petition for dissolution, legal separation, or annulment, is the separate property of that spouse—IF the petition results in a decree, whether of dissolution, legal separation, or annulment.Some couples recognize the cost a divorce or dissolution would result in to one party. If a spouse has significant health issues and the cost of health insurance would be prohibitive, the parties may choose to pursue a legal separation in order that the spouse needing the medical insurance may remain on the other spouse’s coverage. There are a myriad of other reasons a couple may decide on legal separation instead of divorce. Most importantly, such a decision should be that of the couple—what suits their needs best?
In addition to the court entering final orders in either a divorce or a legal separation, the parties may enter into an agreement that’s specific to their needs and wishes, and submit it to the court. The court will usually find the agreements binding. However, after considering the terms of the legal separation agreement, and considering the economic circumstances of the parties and other relevant evidence, the court may find the agreement unfair, except for those provisions related to providing for support, custody, and parenting time of children. Therefore, even if the parties agree, the court will enter a decree rejecting the parties’ agreement.