Understanding Legal Separation
Legal separation offers an alternative to divorce for couples who wish to live apart while remaining legally married. This process allows couples to address issues like child custody, spousal support, and property division without ending their marriage.
When a couple decides on legal separation, they must file a petition with the court. This petition outlines the reasons for their separation and includes a proposed agreement on matters like child custody, visitation, and asset division. Both parties must agree on these terms, or the court will step in to make the relevant decisions.
A legal separation can provide the necessary space for couples to work on their relationship without the finality of a divorce. It also offers financial benefits, such as the ability to remain on a spouse’s health insurance plan. Additionally, some couples choose legal separation for religious reasons or to maintain certain legal benefits.
Arizona’s Legal Separation Statute
According to Arizona’s legal separation statute, the court will only issue a decree of legal separation if the couple meets certain conditions. One party must have resided in Arizona or been stationed in the state as a military servicemember to initiate the separation. The couple must have also attempted reconciliation through counseling or mediation or show that this requirement does not apply to their situation. For instance, the reconciliation requirement might not apply if the couple demonstrates that the marriage is irretrievably broken or that one or both parties want to live separately.
The couple must meet additional requirements to obtain a legal separation if the marriage is a covenant marriage. The court will grant legal separation only for specific grounds, such as adultery, a felony conviction, abandonment, abuse, or habitual substance abuse. Furthermore, the other party must not object to the legal separation in a covenant marriage. If one party objects, the court may advise the other party to initiate divorce proceedings instead.
Notably, the court has the authority to decide on child custody, spousal maintenance, and property division in legal separation cases. Additionally, parties can terminate a legal separation if both agree to restore their legally married status. If the couple goes to court to reinstate their marriage, the court will determine how they should manage any property or debts either party acquired during the separation.
What Is the Difference Between Legal Separation and Divorce?
Legal separation and divorce both allow couples to live apart and make court-supervised decisions about child custody, support, and property. However, legal separation does not end a marriage. A legally separated couple remains married, and the spouses cannot remarry unless they get a divorce. Legal separation provides space to work on the relationship or maintain certain benefits, like health insurance. Divorce, on the other hand, legally ends a marriage. In a divorce, the spouses completely sever their legal ties and are free to remarry.
Benefits and Disadvantages of Legal Separation
Deciding between legal separation and divorce involves weighing various factors unique to your situation. Legal separation offers some benefits that divorce does not, but it also has disadvantages. Understanding these can help couples make informed decisions.
Benefits of Legal Separation in Arizona
Legal separation allows couples to live apart without ending their marriage. This option can provide several benefits, particularly regarding:
- Health Insurance – One of the main advantages is that in most cases spouses can remain on each other’s health insurance plans.
- Finances – Couples can maintain certain financial benefits, such as tax advantages or Social Security benefits, which they might lose in a divorce.
- Religious Beliefs – Legal separation provides time and space for couples to decide whether they genuinely want to end their marriage or whether reconciliation is possible.
- Time to Decide – Legal separation provides time and space for couples to decide if they genuinely want to end their marriage or if reconciliation is possible.
- Child Welfare – It can create a more stable environment for children, as it does not carry the same finality as divorce, potentially reducing stress and emotional impact.
Disadvantages of Legal Separation in Arizona
Despite its benefits, legal separation also has some drawbacks:
- No Right to Remarry – Unlike divorce, legal separation does not allow either party to remarry. The couple remains legally married, which can be limiting if either spouse wishes to start a new relationship with someone else.
- Potential Complications – Managing separate lives while remaining legally married can lead to complications, particularly concerning financial matters and property division.
- Additional Legal Proceedings – If the couple eventually decides to divorce, they must go through another legal process involving more time, expense, and emotional strain.
Which Is Best, Divorce or Legal Separation?
Ultimately, choosing between divorce and legal separation depends on the couple’s specific needs and circumstances. Couples who need time apart but are not ready for the finality of divorce might prefer legal separation. This allows them to live separately while maintaining some of the benefits of their marriage.
On the other hand, couples who are sure they want to end their marriage and move on with their lives might find divorce the better option. Divorce provides a clear end to the marriage, allowing both parties to remarry and fully separate their lives.
Couples should consider their emotional, financial, and practical needs before making this life-changing decision. Consulting a legal professional can help couples understand their options and make the right choice for their situation.
The Legal Separation Process in Arizona
Arizona’s legal separation process involves specific steps and requirements that vary depending on whether the couple has minor children. By following the proper steps, couples can ensure their legal separation proceeds smoothly and fairly.
First Steps to Legal Separation in Arizona
Before filing for legal separation, it’s essential to consider whether this is the right choice for your situation. If possible, discuss your decision with your spouse and consider seeking counseling or mediation. Once you decide to proceed:
- Ensure Residency Requirements – First, make sure you meet Arizona’s residency requirements. At least one spouse must have be living in Arizona or stationed in the state for military service at the time of filing for legal separation. The purpose of this requirement is to ensure the state has jurisdiction over your case.
- Seek Legal Advice – Next, consider consulting a family law attorney. They can provide clarity and help you understand your rights and obligations. They can also guide you through the process and prepare all necessary paperwork on your behalf.
- Prepare Financial Documents – Gather all relevant financial documents, including property deeds, income statements, tax returns, bank statements, and records of assets and debts. These documents will be essential for addressing issues like property division, spousal maintenance, and child support.
How to File for Legal Separation in Arizona Without Minor Children
If you do not have minor children, the process for filing for legal separation in Arizona is straightforward. Follow these steps:
- Fill Out Required Forms – Obtain and complete the necessary forms from your county’s Superior Court. These typically include a Petition for Legal Separation, a Summons, and a Preliminary Injunction.
- File the Forms – File the completed forms with the Superior Court in your county. You will need to pay a filing fee, which varies by county.
- Serve Your Spouse – Serve your spouse with a copy of the filed documents. You must do so through a process server, sheriff, or other legal method. Your spouse usually has 20 days to respond if they live in Arizona or 30 days if they live out of state.
- Attend Court Hearings – If your spouse contests the separation or if there are unresolved issues, you might need to attend court hearings. The judge will review your case and decide on property division and spousal maintenance.
- Receive the Decree – Once you resolve all outstanding issues, the judge will issue a Decree of Legal Separation to legally formalize your separation.
How to File for Legal Separation in Arizona If You Have Minor Children
If you have minor children, the process includes additional steps to address child custody, support, and parenting time. Here are the key differences:
- Fill Out Additional Forms – Along with the basic forms, you must complete additional documents such as an Affidavit Regarding Minor Children and a Parenting Plan.
- Prove Children’s Residency – Provide evidence that your children have lived in Arizona for at least six months to ensure the court has the authority to make decisions regarding child custody and support.
- Attend Additional Court Hearings – You might need to attend more court hearings to resolve disputes regarding child custody, support, or parenting time. The judge will make decisions based on your children’s best interests.
- Take Parenting Classes – Arizona requires parents undergoing legal separation to take mandatory parenting education classes and provide proof of completion to the court.
Legal Separation from Covenant Marriage
A few states, including Arizona, recognize a type of marriage called covenant marriage. Unlike standard marriages, covenant marriages emphasize the commitment to maintaining the relationship through various challenges. Couples must undergo pre-marital counseling and agree to stricter requirements for legal separation and divorce to obtain a covenant marriage.
To obtain a legal separation from a covenant marriage, the petitioner must demonstrate one or more of the following:
- Adultery – The respondent spouse has committed adultery
- Felony Conviction – The respondent spouse has been convicted of a felony and sentenced to death or imprisonment
- Abandonment – The respondent spouse has abandoned the marital home for at least one year and refuses to return
- Abuse – The respondent spouse has physically or sexually abused the petitioner, a child, or a relative living in the home or has committed domestic violence or emotional abuse
- Living Apart – The spouses have lived separately and without reconciliation for at least two years
- Intemperance or Ill-Treatment – The respondent spouse’s habitual intemperance or ill-treatment renders cohabitation unsustainable
- Substance Abuse – The respondent spouse has habitually abused drugs or alcohol
For grounds that require minimum time requirements, such as abandonment or living apart, the court may grant a stay for the legal separation pending the completion of the necessary period.
How Long Does It Take to Become Legally Separated in Arizona?
The time it takes to become legally separated in Arizona varies depending on several factors. Under state law, the court cannot hold a trial or hearing for legal separation until 60 days after the date of service or acceptance of process.
After filing the initial petition and serving your spouse, they typically have 20 days to respond if they are served in Arizona or 30 days if they are served out of state. If both parties agree on all terms, the process can move quickly after the 60-day waiting period. However, if there are disputes over issues like property division, spousal maintenance, or child custody, the process can take longer, potentially several months to over a year if court hearings are necessary. Working with an experienced family law attorney can streamline the process significantly.
Consequences and Considerations of Legal Separation
A decree of legal separation in Arizona has several important consequences. It legally formalizes the separation, allowing spouses to live apart while remaining married. Similar to a divorce decree, the decree also addresses issues like property division, spousal maintenance, and child custody and support.
Separated spouses can retain certain benefits, such as health insurance coverage and tax advantages, which they might lose in a divorce. However, they cannot remarry unless they obtain a divorce. The decree also provides a framework for managing finances and parenting responsibilities separately so both parties understand their rights and obligations during the separation period.
The Binding Nature of Separation Agreements in Arizona
In Arizona, separation agreements are legally binding once the court approves them and issues a decree of legal separation. These agreements outline the terms of property division, spousal maintenance, child custody, and child support. Both parties must adhere to these terms.
If one party fails to comply, the other can seek enforcement through the court. Changes to the agreement can only occur through mutual consent or by court order. The binding nature of these agreements ensures that both parties have clear, enforceable expectations and responsibilities for the duration of their legal separation.
Enforceability and Modification of Separation Agreements
Separation agreements are enforceable by law once the court approves them and issues a decree of legal separation in Arizona. If either party does not adhere to the agreement, the other party can ask the court to enforce the terms. This might involve legal actions such as garnishment of wages or other penalties.
Modification of certain portions of a separation agreement is possible but requires court approval. To modify the agreement, one or both parties must show a significant change in circumstances, such as a change in income or living arrangements. Both parties can also agree to modifications and submit them to the court for approval to ensure the new terms are legally binding.
How Long Can We Remain Legally Separated?
There is no time limit on how long a couple can remain legally separated in Arizona. Once the court issues a decree of legal separation, the couple can stay separated indefinitely, maintaining their legal marital status without cohabitating. However, if either spouse decides to end the marriage, they can file for divorce at any time. The legal separation remains in effect until the couple either reconciles and asks the court to terminate the separation or proceeds with a divorce to legally end the marriage.
Things to Consider When Deciding Between Legal Separation or Divorce
Deciding between legal separation and divorce involves evaluating various factors that can significantly impact your financial, emotional, and day-to-day life. Both options have their own benefits and drawbacks, and the best choice depends on your specific circumstances and goals. Here are some things to consider:
- How each option will affect your financial situation, including asset division
- Whether you or your spouse rely on each other’s health insurance benefits
- The tax consequences of remaining legally married versus getting divorced
- Any religious considerations that might influence your decision
- The potential emotional impacts for yourself and any children involved
- How each option will affect child custody arrangements and child support obligations
- Whether you believe there’s a chance for reconciliation
- The potential legal fees and costs associated with each option
- Whether you or your spouse might want to remarry in the future
- Whether you prefer the finality of divorce or the flexibility of legal separation
What You Shouldn’t Do During a Separation
During a legal separation, couples must adhere to certain rules and limitations. Understanding what you should not or cannot do during this period is essential for avoiding legal complications and maintaining a fair and respectful relationship with your spouse. Here’s what not to do:
- Date Other People – Engaging in romantic relationships with others can complicate the legal separation process and affect negotiations.
- Hide Assets – Attempting to hide assets or financial information from your spouse is illegal and can lead to serious legal consequences.
- Neglect Parental Obligations – Ignoring your parenting duties or custody arrangements can harm your relationship with your children and affect custody decisions.
- Make Major Financial Decisions – Avoid making significant financial changes, such as selling property or taking on large debts, without consulting your spouse or the court.
- Move Out of State with Children – Relocating with your children without your spouse’s consent or a court order can lead to legal disputes and affect custody rights.
- Disparage Your Spouse Publicly – Speaking negatively about your spouse in public or in front of your children can create a hostile environment and affect your legal case.
- Ignore Court Orders – Disregarding any court orders related to spousal support, child support, or custody can result in legal penalties.
- Change Insurance Policies – Do not alter or cancel any insurance policies, such as health or life insurance, without informing your spouse and obtaining court approval.
Financial Aspects of Legal Separation
Legal separation impacts many aspects of a married couple’s finances, so it requires careful consideration and planning. Understanding how taxes, spousal maintenance, and child support are affected can help you make informed decisions during this process.
How Are Taxes Affected by Legal Separation vs. Divorce?
Legal separation and divorce can affect your taxes in different ways. When legally separated, you can file your taxes as either “married filing separately” or “married filing jointly.” Filing separately can result in a higher tax rate and the loss of certain tax credits and deductions.
In contrast, divorced individuals must file as “single” or “head of household” if they meet specific criteria. Filing as “single” can simplify your taxes but might increase your tax liability compared to “married filing jointly.” A knowledgeable tax attorney or accountant can help you determine the best filing status for your situation and manage any tax implications of your legal separation.
Can You Get Alimony in a Legal Separation?
Yes, you can receive alimony or spousal maintenance in a legal separation. Like a divorce, the court can order one spouse to financially support the other during a separation. The amount and duration of alimony depend on various factors, including the length of the marriage, each spouse’s income and financial resources, and the standard of living during the marriage.
Alimony aims to ensure that both parties can maintain a reasonable standard of living post-separation. If circumstances change, such as a significant change in income or living expenses, either spouse can request a modification of the alimony agreement through the court.
Can You Get Child Support in a Legal Separation?
Yes, the court can award child support in a legal separation. The court considers the same factors for child support in legal separation as in divorce cases. These factors include each parent’s income, the child’s needs, and how much time each parent spends with the child. Child support payments cover essential expenses such as food, housing, education, and health care.
The goal of a child support order is to ensure that the parents meet the child’s financial needs and that the child continues to receive adequate support from both parents. Parents can request modifications to child support agreements if there are significant changes in circumstances, such as changes in income or the child’s needs.
Legal Issues and Changes
Sometimes, couples encounter legal issues during the legal separation process or decide to make changes once the separation is finalized. Here’s what you need to know about managing these legal issues and changes.
Contesting a Legal Separation
If one spouse disagrees with the terms the other spouse proposes or with the separation itself, they can contest it. If you wish to contest a separation, you must file a response with the court by a specific deadline, typically within 20 or 30 days depending on where you are served.
In your response, you can outline your points of disagreement, such as child custody, spousal support, or property division. The court will schedule a hearing to address these contested issues. Both parties can present evidence and arguments to support their positions during the hearing. The judge will then make decisions based on the best interests of all parties involved, including any children.
Can We Convert Our Legal Separation into a Divorce?
Yes, you can convert a legal separation into a divorce. To do so, you must file a petition with the court to make the change. Both parties must agree to this change, or one party can request it if they meet the residency requirements for divorce in Arizona. The court will review the petition and, if it approves, will issue a decree of dissolution of marriage, effectively ending the marriage.
The terms of the legal separation, such as property division, spousal support, and child custody, can carry over to the divorce decree or undergo modification as necessary. This process provides a flexible option for couples who initially choose legal separation but later decide divorce is the more appropriate path.
Preparing for Legal Separation or Divorce
Preparing for legal separation or divorce requires careful planning and consideration. Start by gathering all important documents, including financial records, property deeds, tax returns, and any pre- or postnuptial agreements. These documents will help you understand your financial situation and assist in dividing assets and debts. Create a detailed list of all assets and liabilities, noting which ones are marital and which are separate.
Consider opening individual bank accounts and establishing your own credit to ensure financial independence. It’s also important to understand your budget and plan for future expenses, as living separately can change your financial situation significantly.
You should also seek advice from a family law attorney. They can provide guidance on the legal process, help you negotiate terms, and represent your interests in court if necessary.
What You Should Know Before You Get Divorced in Arizona
Before getting divorced in Arizona, you should know that Arizona is a no-fault divorce state, meaning you don’t need to prove wrongdoing by your spouse to obtain a divorce. Instead, you only need to state that your marriage is irretrievably broken.
You should also understand the state’s community property laws, which require equitable division of all marital property and debts. This means any assets and liabilities either spouse acquired during the marriage get divided fairly, though not necessarily equally.
If you have children, remember that the court will prioritize their best interests when determining custody and support arrangements. Both parents are encouraged to participate in parenting plans and attend mandatory parenting education classes.
Hiring an Attorney for Your Legal Separation
Hiring an attorney for your legal separation is the best way to protect your rights and interests throughout the process. An attorney can provide valuable advice on the legal implications of separation so you can understand your options and choose the best course of action. They can assist in drafting and reviewing legal documents to ensure they are accurate and comprehensive. An attorney can also negotiate terms related to property division, spousal maintenance, child custody, and support to achieve fair and equitable agreements. If disputes arise, your attorney will represent you in court and advocate for your interests.
How to Find the Right Attorney for Your Situation
Finding the right attorney for your legal separation involves research and careful consideration of your specific needs. Start by seeking recommendations from friends, family members, or colleagues who have gone through similar situations. Online reviews and legal directories can also provide useful information about local attorneys. Look for attorneys with extensive experience in family law and legal separation cases.
Once you have a list of prospective attorneys, schedule consultations with each of them to discuss your case and evaluate their approaches, experience, and communication styles. During these consultations, ask about fees, availability, and strategies for handling your case. Choose an attorney who listens to your concerns, understands your goals, and offers clear, practical advice. It’s important to feel comfortable and confident in their ability to represent you.
Contact a Legal Separation Lawyer in Phoenix Now
If you are considering legal separation in Arizona, contact Cohen Family Law for your free 30-minute consultation session. Our experienced attorneys have served Arizona families for over 40 years, and are here to help you understand your options and protect your rights.
