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Legal Separation and Separation Agreements

legal separation vs divorce

Sometimes, a couple might have been thinking about getting divorced, but they may not be ready to commit to ending their marriage. Perhaps they feel that there could still be a means of reconciling at some point, so they don’t want to go through the finality of divorce right now. However, they still want to be separate from one another.

Other times, a divorce might be on the horizon, but spouses need to have some type of agreement in place until the divorce becomes finalized. Legal separation might be a good option to try.

What Is Legal Separation?

The laws in Arizona let married couples request a legal separation rather than getting a divorce. However, you will need to have been a resident of Arizona for at least 90 days before you can file a petition for a request for legal separation in the county where you live.

Keep in mind that legal separations are temporary. Essentially, they act as a placeholder before going through with the divorce or reconciling. Keep in mind that there are similarities in the way the family court proceedings take place with a divorce and a separation, the costs tend to be about the same.

This is a no-fault divorce state, but you will still need to provide a reason for the separation (or divorce). This might be because the marriage is irretrievably broken, at least one party wants to live separate and apart, and the other party doesn’t object to the separation. The couple can choose to negotiate the terms of their separation, as they would in a divorce, or the court may decide.

The Legal Separation Statute

In Arizona, the legal separation statute is ARS § 25-323. The wording states that the court shall enter a decree of legal separation if it finds each of the following:

  1. That one of the parties at the time the action was commenced was domiciled in this state or was stationed in this state while a member of the armed services.
  2. The conciliation provisions of § 25-381.09 and the provisions of article 5 of this chapter either do not apply or have been met.
  3. The marriage is irretrievably broken or one or both of the parties desire to live separate and apart or if the marriage is a covenant marriage, any of the grounds prescribed in § 25-904
  4. The other party does not object to a decree of legal separation. If the other party objects to a decree of legal separation, on one of the parties meeting the required domicile for dissolution of marriage, the court shall direct that the pleadings be amended to seek a dissolution of the marriage.
  5. To the extent it has jurisdiction to do so, the court has considered, approved, or made provisions for child custody, the support of any natural or adopted child common to the parties of the marriage entitled to support, the maintenance of either spouse, and the disposition of the property.

Keep in mind that even though you might get a legal separation, the marriage itself still exists. This means that you can’t get remarried if you are only legally separated from your spouse. You will need to go through with the divorce.

Are Trial Separations Different?

Divorce and legal separation are both legal matters. However, if you and your spouse aren’t quite ready to commit to either of those just yet, a trial separation might be in order. This simply means that you and your spouse live apart from one another, even though you remain married and don’t have any formal separation agreement. Often, a couple will reach a verbal agreement regarding the terms of the trial separation.

Most of the time, a couple will live in different homes during a trial separation. However, some couples may find that it’s not possible to afford to live in two different homes and will still live in the same home. However, they will sleep in different bedrooms and keep their finances separate.

They might agree to a three-month or six-month trial separation, at which time they will revisit their situation. They might decide to go through with a divorce, a legal separation, or they might reconcile. Each couple is different.

The Separation Agreement

A separation agreement is a legally binding contract. It could be created by the couple who is separating, or it could be created by a judge. The agreements should be as detailed as possible and should contain information on how the couple will share parenting time and visitation with their children if kids are involved. It should also include information regarding spousal support if it’s relevant. It will also include information on how to divide marital debts and assets.

Both of the spouses will have to agree to the terms in the agreement. If either spouse objects to the agreement, it will not be accepted. The court will then decide on the outstanding issues. You can find some sample agreements that could be used here.

What Is Best—Separation or Divorce?

The answer to this question can only be chosen by you. Since the procedure of getting a legal separation is so similar to a divorce, and because the costs are similar, there’s no benefit to either when it comes to the amount f time it takes or the price. The option that you choose will depend on where you and your spouse are right now mentally and emotionally. If you believe that there is a way to reconcile at some point in the future, and you aren’t willing to let the marriage go, then separation may be the best solution.

However, most people who get to the point where they are willing to get separated realize that getting back together is not likely. Legal separations are rarer than divorces, and most are looking to get a divorce. Take the time to determine what is best for you and then follow that route. Talk with an attorney if you need help with forms, understanding the process, or if you require representation.

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