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Understand the Difference Between Legal Separation and Divorce

Free Legal Advice Arizona

When couples are thinking about splitting, one of the questions they often ask themselves is whether they should just do a legal separation or if they should get a divorce. This tends to be a confusing area for many people, and they aren’t always entirely sure of the differences of which one will be better for them. Below, we’ll be looking into the differences between them to help make your decision easier.

Are They the Same Thing?

You will find that the result of getting a legal separation and a divorce in the state of Arizona will yield the same results. However, there is one major difference. When legally separated, neither of the parties can remarry. This is because they are technically still married to one another since they did not get a divorce.

The marriage remains intact, and you will find that the proceedings for getting a legal separation are about the same as getting a divorce. When you need to get a decree of legal separation, one of the spouses will file a petition, which the other responds to. Hearings will be held for any potential temporary orders that might be needed. This might include things like child support or parenting time, for example.

The spouses will negotiate and come up with a separation agreement. In some cases, when they can agree on everything, they will not need to go to a trial. They may decide to go to mediation to help find solutions to various issues that you and your spouse may currently disagree on. Parenting time and legal decision-making will be determined, and child support will be calculated, just as it would if you were going through divorce rather than a legal separation.

Other times, they may need to go through a trial where a judge will make the final determinations about what happens. Again, this is just like it would typically happen in a divorce.

It’s important to keep in mind that things end up being separated between the couple just as they would in a divorce. This means that the community property that is owned by the spouses—assets and debts—is going to be split equitably. It also means that any separate property belongs to just one spouse. For example, if you had a collection before you came into the marriage, the collection remains yours.

Legal Separations Aren’t Annulments

One of the other mistakes that some people make regarding legal separations is thinking that they are a quick divorce or annulment. This is not true at all, as we’ve discussed already. They are very similar to a typical divorce, which means they are going to take just as much time and go through the same steps.

You have to keep in mind that in Arizona, the only way to get an annulment is if the marriage could be considered invalid or void for one reason or another. One example of what would constitute this and make it possible to get an annulment is bigamy.

Physical Separation and Trial Separation Are Not Always Legal Separation

When one of the spouses moves out of the marital home and is physically separate from the other spouse, they could be said to be going through a trial separation. They are seeing what it’s like to be apart from one another and whether they might want to go ahead with legal separation or divorce.

A trial separation such as this doesn’t carry the same changes that legal separation carries. It simply means that you are physically separated. However, you are still financially bound until you get a legal separation or divorce.

Often, a couple that knows they are in trouble but hopes that it may be possible to work things out will start with a trial separation. Then, often after several months or longer, they will then determine what course to take. Sometimes, reconciliation is possible. Other times, it is not.

Why Choose Legal Separation Rather than a Divorce?

If they are essentially the same thing, you might be wondering why someone might opt for a legal separation instead of a divorce. While the legal separation will terminate the financial relationship between the spouses and they are likely to live apart from one another, they are still legally married. This can be very helpful in cases where one of the spouses may need to remain on the other spouse’s health insurance.

Other times, a couple might feel that there is the potential down the road for reconciliation. By not fully getting divorced, it keeps the option on the table. They feel that it makes for a good alternative to divorce. Some might want to use legal separation as a sort of stepping stone before they move forward and get a divorce even though it’s essentially the same thing.

Because the processes are about the same, you will find that there is no financial advantage to getting legally separated instead of getting divorced. If you were hoping that one would be cheaper it tends not to be the case.

Ultimately, only you and your spouse will know which of these options will be better for your situation.

Do You Need an Attorney?

If you are getting a legal separation, or if you are getting a divorce for that matter, you don’t necessarily need to work with an attorney. If everything is relatively simple and you and your spouse can reach agreements, you can handle things on your own. However, if things are more difficult between you and your spouse and you know you will be going through a contested divorce or separation, an attorney is a good option. They can help with each step of the process.

When you are choosing an attorney, check to see how much time they have when it comes to divorces or separations like yours. If you have a lot of assets, a business, etc., you need to be sure you work with an attorney that can help to keep the property safe.


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