In Arizona, Legal Separation is a viable alternative to divorce for some married couples. For financial reasons, religious reasons, reasons that include possible reconciliation, or even reasons involving health insurance coverage, spouses sometimes decide to move forward with legal separation, rather than divorce. If you are considering legal separation, here is what you need to know about the difference between legal separation and divorce in Arizona.
In terms of the legal process, there is little difference between legal separation and divorce in Arizona. The process of filing for both legal separation and divorce are almost identical and take the same amount of time. There is a Petition for Legal Separation, Service, and an eventual Consent Decree of Legal Separation. The residency requirements are also the same.
If spouses are resolving their legal separation cooperatively in mediation, they will need to discuss and agree upon the same issues, such as division of assets and debts, child support, spousal maintenance, and creating a parenting plan to determine parenting time and legal decision-making authority. If they are involved in litigation with attorneys, these issues would be battled out in an adversarial court process.
At the end of both legal separation and divorce, the community property relationship during marriage (that all assets, debts, and income acquired are equally shared) is terminated by court order. Therefore, there is financial separation and physical separation. In just about all ways, legal separation looks like, sounds like, and feels like divorce, however at the end of legal separation, people are still legally married.
At any time, a legal separation agreement can be converted to a divorce. In mediation, this is done with a simple Stipulated Motion To Convert Legal Separation To Divorce. Once signed by the parties and stamped by the court, the divorce is final. All legal separation terms and agreements remain the same. In litigation, the process is still simple but includes more steps such as the re-filing of Petition For Dissolution of Marriage and affidavit of service. In either approach, the terms remain the same, except in very rare circumstances.
What is the Difference Between Legal Separation and Divorce in Arizona?
When an Arizona legal separation is final the spouses will have ended their community property relationship, financially separated, and live apart, but are still legally married. The issue to be decided in a legal separation and divorce are the same — division of assets and debts, spousal support and child custody. However, in a divorce, spouses are no longer married.
Another difference: In both non-covenant marriages and covenant marriages, both parties need to agree to pursue a legal separation. However, in divorce, as Arizona is a no fault divorce state, only one spouse is needed for a divorce to move forward and conclude.
Why Choose a Legal Separation vs. Divorce?
Legal separation terminates the financial relationship between spouses and spouses live apart, however, when made final spouses are still legally married. This may be beneficial for a spouse who wants to remain on the other’s health insurance, for spouses who have religious reasons to avoid divorce, or for spouses who believe there is a possibility for reconciliation. ‘
How Long Does Legal Separation Take in AZ?
A legal separation takes the same amount of time as an Arizona divorce. Under Arizona law, a legal separation cannot be finalized until 60 days after the Petitioner serves the Respondent. In mediation, the entire process can take 2-4 months. In litigation, the process can take up to one year or longer.
Here are some distinguishing factors to consider:
Ability to Remarry
A legally separated couple is still legally married, making it impossible for either spouse to remarry. In contrast, a divorced couple reverts to single status and each person has the right to remarry. The pain of the current situation may make it impossible to consider remarriage. However, how a person going through this transition feels in the moment, as compared to six months, or six years later are likely very different. As people evolve, they may be more open-minded.
Even though a legally separated couple is still legally married, the federal government recognizes the separated couple as divorced, and they cannot file jointly on their income taxes. Married Filing Separately would be a most likely filing status, as opposed to Married Filing Jointly.
For some, legal separation offers a step between marriage and divorce when one or both parties are not emotionally ready to pursue the permanency of divorce. If this is your situation, you may prefer separation even knowing that you will need to face divorce at some point in the future.
Religion is one of the main reasons couples choose legal separation over divorce. Some religious beliefs are more accepting of separation because a resolution is still possible. You may prefer separation because it provides you and your spouse some financial and possibly physical separation while socially, or at least, legally remaining together.
If you or your spouse is unemployed or has employment without adequate health benefits, one of you may not be able to afford sufficient health insurance. In this situation, legal separation may be a better option for you. Since “legally separated” spouses are still legally married, legal separation in most circumstances may not affect health insurance benefits.
In a divorce, you and your spouse usually must find separate insurance after the divorce is final. COBRA of the current health insurance may be an option for a period of time after divorce, but this is typically quite expensive.
Separation from Financial Liability
Legal separation will divide all assets and debts and keep future income and finances separate property as it would in a divorce. The division of property is the same in both legal separation and divorce. If you and your spouse want to remain together but protect yourselves from the other’s liability of future business or personal debts, legal separation may be an ideal option.
When Minor Children Are Involved
Legal separation and divorce can be equally challenging for children. Whichever path you and your spouse choose, mediation for legal separation or mediation for divorce protects children from the harmful effects of conflict, escalation of fighting, and the litigation experience.
If there is a reasonable chance for reconciliation, legal separation may be explained to children as the time period that Mom and Dad need to live in separate places. Children should always know that this is a mutual decision of Mom and Dad, that the decision is not the children’s fault, that Mom and Dad support and respect one another as parents, and that Mom and Dad each love them with all their hearts. Even if the marriage does not improve, the children have had time to adjust to the new situation and may be more emotionally ready for a divorce in the future.
If reconciliation is unlikely, parents should be aware that if they are not honest with their children, the legal separation may result in false hope that their parents will reunite. This could make a future conversion to divorce more difficult for children to cope with and process the divorce in the long run.
Regardless of whether you choose legal separation or divorce, you can make the best interests your children — their health and well-being the priority when working with your mediator in mediation. Trained professional family mediators are well versed in family law, dispute resolution, and financial issues in order to help you both through the process in a simple, affordable, efficient, fair, and confidential process in order to protect your children from the harm of litigation in court.
Moving Forward While Undecided
The decision to separate or divorce can feel confusing and complicated. One spouse may even resist the notion of divorce proceedings or legal separation. However, everyone involved in a potential transition should understand that if one spouse wishes to proceed with divorce, Arizona’s “no fault” divorce means that a divorce will move forward.
It is possible to move forward with mediation and not make a final decision about whether the end result will be legal separation or divorce. During mediation, you can change your mind, before a decree is final. Thus, if mediation begins as a legal separation, it can be changed to divorce before the final papers are submitted to the court. Likewise, mediation can begin as a divorce and change to a legal separation. There is no difference in the mediation process in terms of legal separation vs. divorce.
Overall, deciding whether to move forward with legal separation or divorce is an entirely personal decision. There is no right or wrong–only what you believe is best for you and your circumstances. Getting legal advice is encouraged in either event. However, choosing mediation rather than each spouse hiring an aggressive law firm will increase the chances for success in a legal separation, since the process needs to remain amicable in order for it not to quickly escalate and become a divorce battle in superior court.