What Is Legal Separation in Arizona?
It is important to understand that simply being separated does not mean that the couple is legally separated. If you or your spouse are "separated" that does not mean there is any sort of legal protection for assets and debts. If you or your spouse were to start a new relationship, the new partner may be considered a party to community property and could file a claim to half of the assets earned during the marriage.
A legal separation is a procedure in which a court gives the couple an order outlining specific orders for issues such as child custody , spousal maintenance, asset division and other relevant issues. Legal separation is generally similar to divorce but the marriage does not end.
The basic requirements for obtaining a legal separation in Arizona are:
- The couple must have been married or be in a "covenant" marriage.
- Either spouse must have lived in Arizona for 90 days immediately before filing the petition for legal separation.
- Either spouse must file a petition for legal separation and attach a settlement agreement that outlines how issues like asset division and child custody will be handled.
Finding Out About Divorce in Arizona
To file for divorce in Arizona, at least one spouse must be a resident of the state for at least 90 days immediately prior to filing.
When divorcing in Arizona (like legal separation), you will not need to prove "fault." Arizona is a community property state, meaning that all assets and debts accumulated during the marriage are owned jointly and will be subject to division. Your own separate or "premarital" property may be exempt from the community property rules and may not require division.
Your divorce will be finalized in one of several ways: through the court’s approval of your conciliation court’s attempt to reconcile your marriage; through the mutual agreement of both parties to the terms of a settlement or stipulation term agreement; or through a contested proceeding that concludes with a judge ordered dissolution of your marriage.
Legal Separation vs Divorce – What Is the Difference?
The primary differences between a Legal Separation and a Divorce in Arizona lie in the couple’s martial status, the legalities involved, and the emotional or cultural nuances involved in the two options. Divorce requires both spouses to agree to disband their marriage; legal separation can be obtained for any reason, particularly for the sake of the couple’s mental well-being, as opposed to only when primary reasons grant it legally. While a divorce leaves a permanent scar on a person’s marital status, a legal separation can always be overturned (in court) by a court request should the couple get back together at any point in the future.
A divorce ends a marriage entirely, whereas a legal separation grants the separation from each other without ending the marriage itself. Unlike a divorce, there is no need to prove either spouse’s wrongdoing or request permission for a separation, as the legal separation can be obtained for reasons of personal growth as easily as it can be obtained for more common reasons. During this period of separation, spouses are still married, but living separately, and do not need to adhere to any terms of a cohabitation agreement or settlement, unlike their divorced peers. Deciding on whether or not to separate is a very personal decision that should be considered carefully before proceeding with the paperwork. It is often a solution for financial issues or emotional troubles, and solving these problems together, with a counselor, can often save the marriage in the end.
Arizona Divorce vs Separation – What Is the Financial Impact?
Legal separation presents both benefits and downsides for separating spouses. Understanding how Arizona courts view the financial implications of separation vs divorce is essential for maximizing your financial outcome in either process. While many of the same rules apply to divorce, legal separation is an important consideration for those who may want to use the process as a bridge to eventual divorce.
Asset and Debt Division
Much like a divorce, legal separation involves dividing up assets, debts and community property acquired during the marriage. In Arizona, property acquired after the date of marriage is community property, meaning it belongs to both spouses.
During legal separation, courts evaluate and divide community property, much like they would in a divorce. Arizona law mandates "fair and equitable" distribution of assets and property, but does not always dictate a 50-50 split. Consequently, decisions about property division and spousal support are intensely based on the couple involved and the circumstances of the relationship.
Alimony
Alike to divorce, alimony may be awarded to dividing parties throughout the separation process. In certain cases, unlike divorce, alimony payments may be made until legal separation is finalized. Factors that determine alimony include cost of living, standards of living throughout the marriage, financial state of the parties and standard of living during the marriage.
Taxation
Separation and divorce are different for tax purposes. As explained by the IRS, if you obtain a legal separation under a decree of separate maintenance, you are still married for tax purposes and generally cannot file as head of household or single. If you eventually divorce, living apart under a legal separation agreement or decree does not automatically entitle you to file as head of household.
Who Gets Custody and Child Support: Divorce vs Separation in Arizona?
For many individuals, the fundamental concern in either a divorce or a legal separation is the impact on children and finances. Fortunately, Arizona courts approach both situations with the same mindset. That is, the focus for judges in divorce and legal separation cases is the best interests of the children. In this light, judges will not treat a divorce, which involves the termination of a marriage, any differently than a legal separation, which only terminates the legal relationship between the two spouses .
When crafting an order as to custody or legal decision-making in Arizona, the judge will consider the following factors:
- Each parent’s relationship with the child
- The child’s relationship with other sibling or family members
- The child’s relationship with school and the community
- The child’s physical and mental health, if applicable
- The current and past relationship between parent and child, including any history of domestic violence
- Any false claims of domestic violence made by either parent against the other
- The ability of each party to perform and to cooperate in matters relating to the child
- The extent and nature of potential parenting time with each parent
- Whether either parent had any prior amount of parenting time
- The willingness to follow the court order
- The level of conflict, if any, between the parents
- The ability of the parent to cooperate
When it comes to financial support for children, the state of Arizona has a strict formula for calculating child support obligations. However, the order as to child support does differ between a divorce and a legal separation. For children born of a marriage or domestic partnership which is legally terminated, the court will issue an order based on legal guidelines set forth in A.R.S. § 25-320. However, where the couple was never married or registered in a domestic partnership, the Arizona Child Support Guidelines dictate the basic amount of support parents owe to their kids. See A.R.S. § 25-804.
Legal Separation Instead of Divorce – When Should You Consider This?
In certain situations, you may find legal separation to be more advantageous than divorce. These scenarios primarily include those where one or both parties have religious beliefs that prohibit divorce or a strong desire to remain married despite no longer wishing to live together. In those cases, separation gives the couple the opportunity to live apart while remaining legally married and retaining certain rights and obligations.
If you are not religiously prohibited from divorcing, legal separation is still worth considering if:
If you have never been married or it has been fewer than 90 days since your marriage, a legal separation in Arizona may be the only way you are able to resolve custody and parenting time issues in the Child Support Services Division of the Arizona Department of Economic Security.
Some religious beliefs prohibit divorce, but allow for a legal separation. If your church will permit you to obtain a legal separation but not a divorce, then legal separation may be your only option to resolve the legal issues relating to custody, visitation and child support in Arizona.
Like most states, Arizona requires that you live in the state for at least 90 days immediately prior to filing for divorce. After 90 days, you can file for divorce. However, you can file for a legal separation in Arizona at any time. Thus, if there is some reason why one or both of the parties cannot or do not wish to remain married for 90 days after filing for divorce, legal separation may be the right choice.
The Legalities of Getting Separated vs Divorced
Like a divorce, a legal separation in Arizona requires the couple to file a petition with the court. The proceeding occurs like a divorce proceeding would, with one spouse filing, serving papers on the other spouse, and then eventually receiving an order for legal separation. Mediation or counseling may be considered if the spouses have children. (Only the parents have a right to seek counseling, however. The state cannot force a couple into counseling.) If there are children, the court will also require a detailed parenting plan, which includes information about who the primary custodial parent will be, the visitation schedule the noncustodial parent is expected to adhere to, and even how the parents will handle things like school selection or medical decisions. Child support payments may be determined at this time as well.
Both spouses do not have to agree to the legal separation. However, in most cases, the spouse pursuing the legal separation should first ask the other spouse to consent to the legal separation by obtaining a written signature. If the second spouse signs the Petition for Legal Separation, it is fairly easy to obtain a decree of separation, as the judgment is almost automatic (provided that the remaining procedural issues are resolved). However, if they do not sign, that does not stop the person seeking the legal separation from filing the paperwork.
If the spouse does not sign the paperwork, it is an indication that the proceeding will likely turn into a divorce proceeding, especially when there are contested issues such as custody. In these cases, the court may require the couple to go through mediation or even a pretrial conference to try to resolve the issues before the case goes to trial. The spouses may even work out an agreement during the course of the legal separation process that can be approved by the court, at which time it becomes a legally binding separation agreement. Because it often takes multiple meetings to resolve issues, this can add significant time to the proceedings.
Legal Separation and Divorce – Concluding Thoughts
Ultimately, when it comes to a legal separation or a divorce, the decision is yours to make. Neither option is inherently better than the other and because of this, it’s important that you take the time to consider the facts of your family’s situation and make the choice that is best suited to you . For some individuals, going the legal separation route while things cool down is a great option—if the couple decides later on that divorce is necessary, they can do that too. However, for others, starting a divorce right away is a way to get out of their unhealthy marriage and start to move forward with their life.
If you have questions about legal separation, divorce, and how the two relate, reach out to a qualified and trusted lawyer today for more information.
