Legal Separation

When going through a divorce, you have a lot of decisions to make. It is easy to lose focus and rely on your emotions, but emotional decision-making can lead to poor outcomes.

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Legal Separation

Legal separation in Arizona is like a divorce but there are distinct differences.

To better understand what a legal separation is, let us first discuss what it is not. It is not merely living apart or taking a break in a marriage. That is just being separated. In fact, you do not even need to live apart to be legally separated.

A legal separation is identical to a divorce in every way except one – the parties are still married when they legally separate. Legal separations and divorces share the same process and the same issues, including division of finances, spousal maintenance, and custody and supports involving children. Once the legal process for a legal separation has been started, either spouse can ask for it to be converted to a divorce, even if it has not been finalized.

People choose to legally separate instead of divorce for many of reasons, but the main reason is financial. Some people choose to legally separate for financial reasons even though they are still very much in love with their spouse.

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If you are considering legal separation, here are some questions to consider:

  • Why is legal separation preferable for you over a divorce?
  • What is it that you wish to accomplish with a legal separation?
  • Will your spouse be agreeable to doing a legal separation instead of a divorce?
  • Do you need to remain on your spouse’s benefits?
  • What assets of your spouse’s will you lose if you choose to legal separate instead of continuing your marriage under the community property laws?
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Here are the most common reasons why people choose to seek a legal separation over a divorce:

To Stay on a Spouse’s Benefits

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.

To Avoid Liability

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.

To Separate Finances

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.

For Religious/Moral Reasons

Some people do not believe in divorce, and a legal separation is a way for them to split without ending their marriage.

For Emotional Reasons

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.”

Process

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.

(Same as divorce)

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.

Have Questions? We have answers

Child Custody in Arizona FAQs

Child Custody FAQs

My spouse filed for legal separation, but I want to get a divorce. Can I change it to a divorce?

Yes, you may. You will need to file a Motion to Convert to Dissolution with the Court.

What issues need to get decided in a legal separation?

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.

 

I know you must be in Arizona for 90 days to get divorced. Is that true of legal separation?

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.

After a legal separation, is the money I earn my money or community property.

Your money. Any property or debt acquired after legal separation belongs to the spouse who acquired it.

 

We are at the point where we want to live apart, but neither of us want to formally separate or divorce. Is there anything we can do to divide our finances without starting a Court proceeding?

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.

 

Learn More About Divorce

Arizona Divorce Resources

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