Should I Get a Legal Separation or a Divorce?
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Originally Posted On: https://thevalleylawgroup.com/blog/legal-separation-or-divorce/
In Arizona, couples looking to legally alter or end the marriage partnership are given two options: a divorce, referred to as a dissolution of marriage, or a legal separation. Depending on the unique circumstances of the situation, as well as how the couple plans to solve their disputes, one option may be preferable to the other.
Divorce in Arizona
A divorce is the legal dissolution of a marriage that must begin with one spouse petitioning the court for a divorce. To do so, the petitioner files a Petition for Dissolution of Marriage. For the process to move further, the other spouse (known as the respondent) must be informed of the filing. If the petition has been filed and served to the respondent, and they did not respond within their 20 or 30-day time limit, the petitioner may ask for a default divorce. A default divorce can mean that the judge will award the divorce based on the terms presented by the petitioner.
If both parties wish to divorce and file a consent decree, the case may proceed. At this point, the parties must participate in the division of property, assets, and debts, determine whether child support or alimony is necessary, and create a parenting plan to accommodate any children. An Arizona Family Court judge will approve or deny any decisions made, decide any additional terms the couple could not agree upon, and issue a divorce decree.
Legal Separation in Arizona
In Arizona, married couples have the option to legally separate from one another while remaining considered married by law. A legal separation proceeds similarly to a divorce in that one spouse must petition the court for a legal separation. The petition and associated documents must be served to the respondent, who has 20 days to respond. If there is no response, the petitioner may ask for a default separation.
When both parties are in agreement that a separation should occur, they may enter a negotiation, mediation, or simply work together to create a separation plan. They must decide how to divide assets and debts according to Arizona law and create a parenting agreement that dictates parenting time and legal decision-making rights. The resulting plan must be approved by an Arizona Family Court judge, who will issue a separation decree.
Differences Between Divorce and Legal Separation
As you can see, divorce and legal separation may proceed in much the same way, but there are key differences that separate the two. The main distinction between divorce and legal separation is that if a couple divorces, they legally dissolve the marriage and are no longer legally married to each other. As a result, they are free to marry others. With a legal separation, however, this is not the case; a couple would still be legally married and could not legally marry anyone else until they were divorced.
Divorce is a permanent end to a marriage, meaning that if a couple wishes to reconcile, they must legally marry a second time. Legal separations can be reversed, allowing couples to reconcile their differences without getting married once again. Legally separated couples can petition the court to remove their legal separation, and because they were already married, they do not need to get married again.
For a divorce, only one party must file a petition for divorce, and the respondent has 20 days to respond if they live in Arizona and 30 if they live out of state. If they do not respond within this timeframe, the petitioner can request a default divorce, meaning that the petitioner will be granted their divorce according to the other party’s failure to respond.
The respondent has 20 days to respond to a petition for legal separation regardless of their state of residence. However, if they do not respond, the petitioner cannot proceed with a default separation. Both parties must agree to a legal separation.
Courts are prohibited from granting divorce decrees under A.R.S. 25-312 unless one of the spouses involved has lived in Arizona for a minimum of 90 days before the filing of their divorce petition. By contrast, Arizona requires only one spouse to be a resident of the state when a petition for a legal separation is filed.
Because of state residency criteria for divorce, some couples decide to formally separate instead. In the interim, before they can submit a petition for dissolution of the marriage, spouses may use the time to determine their obligations and create plans for asset division and child custody that will then apply to the eventual divorce.
After a divorce is finalized, both parties receive the right to get married to another party. With a legal separation, however, the couple cannot remarry unless they choose to proceed with a divorce, dissolving their marriage.
Arizona Legal Separation vs. Divorce Regarding Property Division
In Arizona, both divorce and legal separation must adhere to Arizona community property rules regarding the division of assets. All property and debt acquired by either spouse during the marriage are divided equitably. Any assets or debts acquired before marriage, as well as gifted or inherited property, will remain separate property and will not be subject to division.
However, a legal separation may provide divorcing spouses with continuing qualifications for things like military benefits. In a divorce, military benefits are rescinded unless the spouse meets 20/20/20 qualifications (20 years of service, 20 years of marriage, and 20 years of overlap between the two). However, during a separation, military benefits remain intact.
Pensions and retirement accounts are subject to Arizona community property laws and will be divided in both legal separation and divorce. Neither Social Security nor disability payments are subject to community property laws.
Suggested Reading: Understanding Arizona’s Community Property Laws
Legal Separation vs. Divorce Means for Joint Filings and Insurance
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Most assets and benefits are subject to community property laws in Arizona and are divided similarly whether a couple is divorcing or legally separating. Some assets, however, can be approached differently during a legal separation than in a divorce, including:
After the judge signs a formal Decree of Legal Separation and submits it to the clerk, the couple is deemed legally separated. At this point, they are no longer eligible to submit tax forms as a married couple, whether they once filed jointly or separately. In other words, the year a legal separation filing is resolved is the last year couples can submit their income tax returns jointly as a couple. If the couple had not filed back tax returns, in all income tax years before the legal separation occurred, couples could continue to file their income tax returns together.
Depending on a couple’s final legal separation settlement, the stipulations of their separation agreement may mandate that one of the ex-spouses or partners will continue paying for the other partner’s health insurance. If it does, the spouse who is covered by the insurance plan as the policyholder should send the insurer a copy of their separation decision along with a notice informing their provider that they plan on covering a dependent under their existing policy. The current coverage plan may stay in effect, and the insurer is required to give either spouse a notice of cancellation, lapse, or changes in their coverage under the policy.
Credit Scores and Debt
The use of a jointly owned credit card, the amount of accumulated debt, and the party assigned the debt in a separation agreement or divorce all affect who is responsible for paying off that debt. When couples divorce, if they have significant credit card debt that was largely accrued by one spouse, the other spouse should talk to a divorce lawyer about how to handle negotiating this debt, so they are not left with debt or a reduced credit score due to their ex’s actions.
In a divorce settlement, spouses might be allowed to incorporate an indemnification clause as compensation for the accrued debt. However, going to court after any final settlements are made may be necessary for enforcing these orders.
AZ Legal Separation vs. Divorce Regarding Child Custody
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Child custody or parenting time disputes often arise when parents file for divorce or legal separation. In these circumstances, parents may disagree about who gets to make decisions about a child’s welfare, schooling, and healthcare, as well as the child’s primary residence and the amount of parenting time allotted to non-custodial parents. In Arizona, legal and physical custody are referred to as legal decision-making rights and parenting time, respectively.
Parents are free to create their own parenting agreement in either separation or divorce, but it must be approved by a judge. If parents are not able to come to an agreement regarding legal decision-making or child custody, they may pursue mediation to attempt to come to an agreement outside of court. If this is not successful, a judge will make this determination based on the best interests of the child.
Suggested Reading: Child Custody and Parents Who Aren’t Married
Covenant Marriage and Legal Separation in Arizona
Arizona is one of the few states that recognizes covenant marriages, which have different requirements and prerequisites for both marriage and divorce. To enter into a covenant marriage, couples must attend marriage counseling with either a marriage counselor or clergy member to certify their union. They must agree that the marriage is for life, that they will pursue every avenue possible to repair the marriage, declare their intent to enter a covenant marriage and certify via an attestation that they understand the requirements involved.
Obtaining a divorce or legal separation while in a covenant marriage can be complicated. Both processes have additional requirements that must be met before a judge will grant a separation or divorce. Primarily, couples in covenant marriages must speak with a marriage counselor or clergy member about marital issues before requesting a divorce or separation. In addition, divorce or separation will only be granted in specific circumstances, including:
- Adultery by one spouse
- Imprisonment, especially for felony charges.
- Abandonment, where one spouse leaves the other with no contact for at least a year.
- Abuse, whether sexual abuse, emotional abuse, or physical abuse.
- Mutual separation, where both spouses choose to live apart for at least a year.
- Drug or alcohol dependency.
Evidence of any of the mentioned scenarios is necessary to achieve a divorce or legal separation in a covenant marriage. If the couple agrees to end the marriage or has been living separately for at least two years, one of those years following the legal separation order, they may file for divorce.
Suggested Reading: FAQs About Covenant Marriage in AZ
Is Divorce or Legal Separation Better for Me?
Whether a legal separation or divorce will work best for a couple depends on the dynamics of that particular marriage. For some couples, the marriage is irretrievably broken. This concept is referred to as irreconcilable differences, and the couple anticipates that no amount of discussion or debate will solve the issue. In this case, divorce may be the best option.
For other couples unsure about pursuing a permanent end to the marriage, a legal separation may be preferable. Legal separations, because they are not as permanent as divorce, can be used by couples who may need time, space, and financial separation to process their marital issues. Other couples who no longer want to remain in the marriage but wish to continue sharing things like military benefits, health insurance, tax benefits, and more may choose legal separation over divorce.
Overall, the decision to pursue divorce or legal separation is a personal one and will vary from case to case. Evaluating your priorities, your current situation, and the options divorce and legal separation can provide are essential for knowing which solution would be the most effective for you.
Do You Need a Lawyer for Legal Separation or Divorce in Arizona?
Although you are not legally required to secure legal representation for a divorce or legal separation case, a skilled Arizona divorce and legal separation attorney can be critical to the success of both filings. Attorneys can ensure you file all necessary documents correctly and within the required time frame. An attorney can also represent you during mediation and litigation, ensuring a fair division of assets and parenting agreement.
If you wish your legal separation to come to an end, an attorney can help you file to end the separation or petition for divorce. If any of the terms outlined in the separation decree must be modified, including child support, spousal maintenance, parenting time, and more, a lawyer can help you petition the court to modify these orders.
Consult The Valley Law Group for Legal Separation in Arizona
Legal separation and divorce proceed very similarly but result in markedly different outcomes. If you are deciding whether divorce or legal separation is best for you, consult with a divorce attorney to get the legal perspective you need, personalized to your unique situation.
The Valley Law Group takes pride in providing Phoenix-area residents with the extensive legal knowledge necessary to pursue the right course of action. For more information about Arizona legal separation or divorce, contact us to schedule a consultation with our team.
Jonathan Roeder, Co-Founder of The Valley Law Group, is an Arizona native who has dedicated his life and career to the service of others. After graduating salutatorian of his high school class, Jonathan attended beautiful and prestigious Pepperdine University, where he majored in Political Science. During his tenure at Pepperdine University, his passion for helping others grew after securing a clinical position with a residential treatment center for juveniles with substance addictions. Post-graduation, Jonathan returned to Arizona and served as a residential manager for mentally and physically disabled homes.