Legal separation is almost identical to a divorce in every way except one: You are still married at the end of it. Otherwise, the process and issues are the same: The community property needs to be separated, what happens with the children need to be decided, and the court must rule on whether one party is entitled to child or spousal support from the other party. The only difference is you are still married at the end of the proceedings.
Some people think that just because they are living apart, they are legally separated. That is not a legal separation. You are still married, and still accumulating marital property in the eyes of the law. A legal separation can only happen through the Courts.
There are many reasons why someone might choose to get legally separated. Some of the common reasons are (1) to remain on certain benefits belonging to the other spouse, (2) to avoid liability for the other spouse’s actions or business dealings, (3) for emotional reasons because the parties are not ready to divorce, (4) for religious reasons, or (5) to separate themselves financially.
As for separating the parties financially, legal separation is the strongest option for people who don’t want to live under community property laws but want to remain married. The reason why legal separation is stronger in this regard than a postnuptial agreement is because a postnuptial agreement is more easily set aside or overturned.
Both parties must agree to a legal separation. If either party wants to convert the legal separation into a divorce, they may do so. If at a later date the parties want to divorce they can begin that process.
If you are considering legal separation, here are some questions to consider:
Many employer benefits, including health insurance, are only available to an employee’s spouse and not to an ex-spouse. This is particularly true with health insurance. So legal separation is often used as a method to separate the parties while allowing one spouse to remain on the other’s spouse’s benefits. If this is your situation, you should speak with your employer’s human resources director to see how legal separation would affect spousal benefits.
Sometimes, a spouse begins to make reckless financial or personal decisions. Arizona is a community property state, so if your spouse gets sued, you are equally liable. But if you are legal separated, the community property laws, including those regarding liability, no longer apply.
Some people believe spouses should share finances; others believe spouses are better off keeping their finances separate. Legally separating removes spouses from the community property laws of the state. You should also be aware that post-nuptial and pre-nuptial agreements can accomplish the same, but those documents are subject to challenge at the time of divorce.
Some people do not believe in divorce, and a legal separation is a way for them to split without ending their marriage.
A legal separation is a smaller step to take than a divorce. A divorce has finality to it. While that is also true of legal separation when it comes to dividing up finances, the marriage remains intact. And it can be easier emotionally to say, “we’re separating” than it is to say, “we’re divorcing.”
A legal separation follows the same process of a divorce. There must be a Petition, Service, and a Response. If the two spouses come to an agreement, they can submit a Consent Decree to the Court for approval, just like a divorce.
Both parties must agree to a legal separation.
Post-legal separation. If you decide after being legally separated to divorce, you can file for divorce by filing a Petition. It will need to be served. The focus will be strictly ending the marriage; however, if there are modifiable provisions (commonly, child custody, child support, and spousal maintenance) in the Legal Separation Decree, modification of those terms can be brought as part of the divorce action.
Yes. You will need to file for divorce.
Yes, you may. You will need to file a Motion to Convert to Dissolution with the Court.
The same as those in divorce. The Court must divide up all the community property and debts the two of you have. That includes houses, businesses, bank accounts, retirements accounts, pensions, vehicles, stocks, credit card debts, other debts, etc. Spousal maintenance can also be awarded as part of the legal separation.
If you have children, the court must decide the custodial issues of legal decision-making and parenting as well as the issue of child support.
No. For legal separation, one of the spouses just needs to be domiciled in Arizona. Domiciled means you live here, and you intend to remain living here.
But to divide up property, Arizona will need to have personal jurisdiction over the other spouse (Arizona has it if the other spouse lives here or has a significant connection to the state; if you are unsure about if Arizona has personal jurisdiction, consult with an attorney). If children are involved, the home state must make those decisions. The home state is either the state that issued the current custody order or the state where the child most recently lived for six consecutive months.
That is your money. Any property or debt acquired after legal separation belongs to the spouse who acquired it.
Yes, the two of you can create and sign a Separation Agreement. Although a Separation Agreement does not have the same legal effect as a Decree of Separation or a Divorce Decree, it can divide up property and decide how property will be allotted.
You can get an annulment if you entered into a marriage that is either an illegal marriage or became voidable due to some defect in the marriage that occurred at the time of marriage. If you have only been married a short time and you realized you made a mistake, it may not be enough to get an annulment. The best way to figure out if you qualify is to meet with a divorce attorney.
Yes, you can stop a divorce at any time during the process if your spouse has not been served or has not filed a Response, and you were the filing party. But if the divorce has “officially” started, meaning, your spouse has been served or filed a Response, the two of you would have to agree to stop the divorce. If you and your spouse decide to stay married, the divorce case can be canceled or “dismissed” by filing a request with the Clerk of Superior Court and signed by both parties.
You must go through the Court to get divorced. But, when parties are in agreement, the paperwork can be drafted by an attorney who will file it once it is signed by the parties. In that case, the Court will still open and close a case, but neither party will have to set foot in the Courthouse.
But if you cannot come to an agreement regarding your divorce, a judge will have to make those decisions for you.
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