Differences Between Legal Separation and Divorce in Arizona

In Arizona, spouses can complete their entire legal separation or divorce process in mediation. Mediation allows spouses to avoid the combative approach of litigation. While the courts continue to experience major delays in the wake of COVID-19, the legal separation and divorce process in mediation remains simple, affordable, and can be easily completed in as little as two months.

Spouses can complete their entire legal separation or divorce 100% online via video conferencing. The Aurit Center has long been a leader in online mediation, where spouses reach agreements on all issues of divorce, from the location of their choice. Whether your meetings take place online or in-person, we draft all of your legal documents, you sign them, and then we submit them to the court on your behalf. By completing your process through mediation, you never have to step foot in a courtroom.

separation divorce differences arizona

In Arizona, legal separation is a viable and advantageous alternative to divorce for some married couples. Spouses might choose legal separation for financial reasons or religious considerations.  Some do so to address the need for continued health insurance coverage, while others need time apart with the hope of reconciliation.

In mediation, you will reach all agreements in an amicable, respectful manner. The Aurit Center prioritizes the well-being of children, and we help you to create agreements that allow you to continue to provide structure for your kids. Our work helps you and your children to have a sense of stability when you need it the most.

The Aurit Center personalizes all services to meet the unique needs of our clients. During your complimentary consultation, your potential mediator can explain the advantages and disadvantages of Legal Separation, and can help you to make an informed decision about how best to move forward. The free consultation is informational and does not begin any process. Call us today at 480-999-7399, or reach out through our online submission form to schedule your free consultation.

Make An Informed Decision

If you are considering a legal separation in Arizona, here is what you need to know about the differences between legal separation and divorce, also referred to as the dissolution of marriage.

In Arizona, there is very little difference between the process for legal separation and the process for divorce. Indeed, the process of filing for either is almost identical and can take about the same amount of time to complete. Both require the following legal documentation and process: Petition, Service, and a final Consent Decree. The residency requirement for both is that at least one spouse has been an Arizona resident for at least 90 days.

In mediation, for either legal separation or divorce, you will need to discuss and agree upon the same issues: division of assets and debts, child support, spousal maintenance (alimony), and a parenting plan including parenting time and legal decision-making authority. If you are involved in litigation with a divorce attorney representing opposed parties, these same issues will be battled out in an adversarial court process.

What happens to our community property relationship?

At the end of both legal separation and divorce, the community property relationship during the marriage (which states that all assets, debts, and income acquired are equally shared) is terminated by court order. In other words, either process includes property division to include financial separation and physical separation. In just about all ways, legal separation looks like, sounds like, and feels like a divorce. However, at the end of the legal separation process, spouses are still legally married.

Can we convert our legal separation into a divorce?

At any time, a legal separation agreement can be converted into a divorce. In mediation, this is done via a Stipulated Motion To Convert Legal Separation To Divorce. Once signed by the spouses and stamped by the court, the divorce is final. All legal separation terms and agreements can remain the same. In litigation, the process includes more steps such as re-filing of the Petition For Dissolution of Marriage, and the Affidavit of Service. In both mediation and litigation, the terms typically remain the same when converting a legal separation to a dissolution, except in very rare circumstances.

How is legal separation different from divorce in Arizona?

When an Arizona legal separation is finalized, spouses will likely have ended their community property relationship, financially separated, and live apart. However, they are still legally married, where divorced spouses are no longer legally married. The issues to be decided to create legal separation or divorce agreements are the same: division of assets and debts, spousal support and parenting time, previously referred to as child custody.

The differences between legal separation and dissolution include differences with regard to tax issues and the ability of spouses to remarry. There are tax benefits granted to married couples that no longer apply when a couple is legally separated.  Additionally, the ability to continue to maintain a spouse’s employee benefits, such as health insurance and life insurance, also vary.

Why would I choose a legal separation over a divorce?

Legal separation terminates the financial relationship between spouses, who will most likely now live apart, however, they are still legally married. This can be especially beneficial for a spouse who wants/needs to remain on the other’s health insurance. There can be financial benefits depending upon how the agreements are structured. Whether spouses have religious reasons to avoid divorce or they believe there is a good possibility for reconciliation, legal separation provides a useful alternative to divorce. For some spouses and their children, legal separation is an emotional stepping stone or trial separation that provides more time to adapt and adjust to their changing family dynamics.

How long does it take to get a legal separation in Arizona?

In Arizona, getting a legal separation takes the same amount of time as getting a 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 be completed within 2-4 months. The Aurit Center can help you reach agreements as quickly as possible and complete your entire process efficiently.  In litigation, the process can take up to one year or longer.

How long can we be legally separated in Arizona?

In Arizona, a couple can remain legally separated for as long as they wish, until the time of either spouse’s death. In the event that one spouse dies while the couple is legally separated, the marital relationship ends without the surviving spouse going to family court.

Legal Separation Possible Advantages

Can legal separation help with emotional readiness?

Legal separation can serve as a step in between marriage and divorce, when either one or both parties are not emotionally ready to pursue divorce. If this is your situation, a legal separation offers you the opportunity to develop mutually-beneficial agreements in mediation, while taking the time you need to emotionally prepare for divorce. The legal separation process can easily transition into a divorce or, should you reconcile, transition back to your former marital status.

Additionally, there are many unique emotional situations in which a legal separation is advantageous.  For example, legal separation may be preferable for couples who find that they still love one another but no longer desire to live together, or for the couple that are no longer in love with one another but want to continue to pool financial resources. Mediation is ideal for helping couples reach unique personalized agreements in a non-judgmental, supportive environment.

What if there are religious implications?

Religion is one of the main reasons couples choose legal separation over divorce. Some religious or cultural beliefs are more accepting of legal separation over divorce, because they appreciate that reconciliation is still possible. You may prefer separation because it provides some financial, and possibly physical, separation while socially, or at least legally, remaining together. Therapists and counselors can help those struggling with the religious aspects of marriage, separation, and divorce. Spouses in mediation collaborate to reach mutually-beneficial agreements that meet their needs whether they decide to legally separate, divorce, or reconcile.

Can we stay on the same health insurance?

In the event that either spouse does not have sufficient health insurance coverage, due to unemployment or employment without adequate benefits, you may decide to legally separate to ensure that both spouses continue to have sufficient health insurance coverage. Since legally separated spouses are still legally married, in most circumstances health insurance benefits may remain in place following the legal separation. It is important to check with your health insurance provider to thoroughly understand your benefits, and how legal separation may affect coverage for you or your spouse.

In an Arizona divorce, spouses usually have separate insurance after the divorce is final. COBRA, through the current health insurance, may be an option for a period of time after divorce, but this is typically quite expensive and has a finite coverage period.

Can we separate to eliminate financial liability?

Legal separation divides all assets and debts, keeping future income and finances separate, 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 need to protect yourselves from the other’s financial  liability due to future business or personal debts, legal separation may be an ideal option.

Legal Separation may allow for continued eligibility for retirement, military, or social security benefits after meeting specific requirements. It is important to speak with benefit providers to thoroughly understand how legally separating or divorcing will impact you and your spouse’s eligibility.

How does legal separation impact children?

Legal separation and divorce can be equally challenging for children. Whether you choose legal separation or divorce, mediation helps you protect your children from the harmful conflict and fighting of litigation. Children are emotionally impacted when their parents legally separate or divorce. But research tells us that the negative emotional impact is due to the CONFLICT involved and not the process itself.  Mediation helps protect kids and ensure that they adapt in the most positive way as possible.

How do we tell our kids that we are getting a legal separation?

When there is a reasonable chance for reconciliation, legal separation may be explained to children as a time period that Mom and Dad need to live in separate places. Children should always know that this is a mutual decision made by both parents, that it is not the children’s fault, that Mom and Dad support and respect one another as parents, and that Mom and Dad love each of them with all their hearts. Even if the marriage does not improve, the children will have had some time to adjust to the new situation, and may be more emotionally ready for a divorce in the future.

When reconciliation is unlikely, parents should be honest with their children so that the legal separation does not result in a false sense of hope that the parents may reunite. Unrealistic expectations can make a future conversion to divorce more difficult for the children. Whether you choose legal separation or divorce, you can prioritize your children’s health and well-being by completing your process in mediation. Trained professional family mediators are versed in family law, dispute resolution, and divorce-related financial issues. Your mediator will help you both through the process in a simple, affordable, efficient, fair, and confidential way that will best protect your children from the harm of litigation in court.

Can we move forward if we are undecided?

The decision to separate or divorce can be complicated and confusing. One spouse may resist the notion of divorce proceedings or legal separation altogether. However, everyone involved 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 before you have made a final decision about whether to  legally separate or divorce. During mediation, you can change your mind at any time 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 at any time before a decree is final. There is no difference in the mediation process in terms of legal separation versus divorce. Moving forward with legal separation or divorce is an entirely personal decision. There is no right or wrong; only what you believe is best for your circumstances. Getting legal advice from a family law attorney is encouraged in either event.

In mediation, you and your spouse will be guided by your mediator to communicate in a solution-focused manner. This new way of communicating lends itself to keeping conflict low in the future. Choosing mediation, rather than each spouse hiring an aggressive law firm, will increase the chances of a successful and amicable separation. You can choose mediation and avoid escalating conflict, and a divorce battle in superior court.

Some Possible Disadvantages of a Legal Separation

Before you make a decision about legally separating versus divorcing, please consider the following possible disadvantages of legal separation:

Can I get remarried while I am legally separated?

No, as a legally separated couple you remain 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 at any time following the dissolution of their marriage. For some spouses going through a legal separation, the pain of the current situation makes it nearly impossible to be concerned about remarriage. However, how the transition feels in the moment, as compared to six months or six years from now, are likely very different. Both spouses should review their options with their mediator in order to make an informed choice.

Can we file joint taxes while legally separated?

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. Agreements regarding the distribution of funds from tax returns can be made in mediation. Many spouses choose the Married Filing Separately status. Spouses can seek out professional accounting services to verify they are making the best decision regarding their tax filings.



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