Legal Separation vs. Divorce in Arizona

Legal separation is one of those family law topics people sometimes find confusing. Actually, it really is quite simple. The result of legal separation in Arizona is essentially the same as with divorce, but for one very important thing – the parties cannot marry other people because they are still married to each other! And as with a divorce, sometimes it can get complicated and that’s where an attorney can help.

Legal Separation Is Not Divorce

Couple Choosing Legal Separation vs. DivorceDespite the marriage remaining intact, legal separation proceedings are almost the same as divorce proceedings. To obtain a decree of legal separation, a petition is filed by one spouse and then answered by the other. Hearings are held for temporary orders, including child support and parenting time. Spouses negotiate a separation agreement. There may be a trial and the family law judge makes determinations and enters final orders. A family lawyer can help mediate the process in any of these steps.

Spouses may participate in mediation to resolve issues, including the terms of their parenting plan. Legal decision-making and parenting time must be determined, often after a child custody evaluation. Child support is calculated using the Arizona Child Support Guidelines. Spousal maintenance may be awarded to support the economically dependent party. Community assets and debts are divided (discussed below). But the marriage is not dissolved.

That the marriage continues after the decree of legal separation is entered could, at least arguably, influence the proceedings in the sense the spouses could reconcile someday. Yet that is not a factor the court considers in, for example, determining which parent the children will live with most of the time. Reconciliation is always a possibility given it’s a legal separation, not a dissolution of marriage.

A quick note about legal expenses. Because essentially the same family court proceedings take place with both divorce and legal separation, expect the cost to be comparable as well. Take a look at our money-saving tips for Arizona divorce and for hiring a lawyer; they apply equally to saving money in your legal separation.

Legal Separation Is Not Annulment

Legal separation is not a quickie divorce. Nor is legal separation some kind of annulment. In Arizona, annulment is only available in cases where the marriage was adjudged “null and void” because some impediment rendered the marriage void or invalid. For example, bigamy renders a second marriage void because the first marriage was never legally dissolved. (Bigamy is also a crime.) In contrast to an annulment, legal separation can only be obtained from a valid marriage. That spouses are unwilling, unable, or reticent to divorce, choosing to legally separate instead, does not diminish the validity of their marriage in any way.

Arizona’s Legal Separation Statute

Legal Separation Lawyer Phoenix ArizonaThe Arizona legal separation statute is ARS § 25-313 which sets forth the findings necessary for the court to award a decree of legal separation:

The court shall enter a decree of legal separation if it finds each of the following:
1. That one of the parties at the time the action was commenced was domiciled in this state or was stationed in this state while a member of the armed services.
2. The conciliation provisions of § 25-381.09 and the provisions of article 5 of this chapter either do not apply or have been met.
3. The marriage is irretrievably broken or one or both of the parties desire to live separate and apart or, if the marriage is a covenant marriage, any of the grounds prescribed in § 25-904.
4. The other party does not object to a decree of legal separation. If the other party objects to a decree of legal separation, on one of the parties meeting the required domicile for dissolution of marriage, the court shall direct that the pleadings be amended to seek a dissolution of the marriage.
5. To the extent it has jurisdiction to do so, the court has considered, approved or made provisions for child custody, the support of any natural or adopted child common to the parties of the marriage entitled to support, the maintenance of either spouse and the disposition of the property.

In what is a no fault legal separation (as with no fault divorce), the court will enter the decree if the marriage is irretrievably broken.

Physical Separation or Legal Separation?

When a marriage is in real trouble, many people assume the only option is to file for an immediate divorce. (Sometimes because they’ve been told the “first to file wins.”) Not so. Many spouses separate and live apart, at least for a time, and reflect. As a first step, physical separation happens because there are genuine problems in the marriage, but it is not necessarily irretrievably broken.

One spouse’s moving out of the marital home is always an alternative to divorce. Maintaining two residences could be a temporary solution to the couple’s problems (a trial separation period), which could become a permanent separation when spouses are estranged.

Trial separation either results in reconciliation or it does not. Regardless, the experience typically solidifies the spouses’ decision on whether to petition for dissolution of marriage or petition for legal separation. The day their trial separation began is often the official date for dividing the marital estate in the legal proceedings thereafter.

By separating permanently the spouses exhibit no intent to reconcile and get back together. When the break-up is reasonably amicable, each spouse takes his or her separate property along with a fair portion of the community property. They often work out informal agreements over a number of family matters, from childcare arrangements to paying the household bills.

In Arizona, separated spouses still own an equal share of community property and are still equally responsible for community debts. They retain equal ownership of the marital estate, regardless of whether property is titled in one spouse’s name or in both names. On the one hand, the spouses may remain physically separated and married until death, never taking legal action (“until death do us part”). On the other hand, either spouse may petition the Superior Court for Maricopa County, or some other, for a decree of legal separation.

First Steps to Legal Separation

Similar to a decree of divorce, a decree of legal separation is enforceable as a final judgment. Either party can seek to enforce court orders (as when a party is ordered to pay monthly spousal support for a number of years, but has not done so). A decree of legal separation is one step short of divorce, yet it’s a big step.

With legal separation, the marriage remains intact, but every other issue is decided just as if they divorced. This type of separation is officially recognized when the judge makes a ruling on the division of property, spousal maintenance, child custody, and child support. Although legal separations are less common than divorces, filing for legal separation involves essentially the same steps as filing for a divorce. Download our free e-book, Getting Started: 7 Must-Do Items for Divorce Planning. Learn what you need to do initially to pursue either legal separation or divorce.

Legal Separation Requires Community Property Division

When it comes to disposition of property in Arizona legal separation, follow the same law as with divorce. ARS § 25-318(A) provides in pertinent part:

In a proceeding for dissolution of the marriage, or for legal separation, … the court shall assign each spouse’s sole and separate property to such spouse. … [I]t shall also divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct. For the purposes of this section only, property acquired by either spouse outside this state shall be deemed to be community property if the property would have been community property if acquired in this state.
[Emphasis added.]

What are the consequences of a decree of legal separation?

When court proceedings result in a final decree of legal separation, property acquired after the petition was filed will be the separate property of the spouse who acquired it. In other words, there is no further accumulation of community property once the decree is entered. Understand that the spouses may still buy real estate together as joint tenants or tenants in common, for instance, just as other competent adults can do. But any post-petition property acquisitions are separate assets and debts, not community.

Why Not Get a Divorce?

Why not get a divorce if the only difference in the outcome is the ability or inability to marry somebody else? There are several reasons why legal separation is chosen over divorce. For some spouses, it is not about being free to remarry. Religious beliefs may prevent them from dissolving their marriage, leaving legal separation as the only alternative when things go sour.

Maintaining health insurance for the spouse who’s employer does not provide that benefit may be another reason. This may be an option, for instance, when the supported spouse is a stay-at-home parent and the children’s primary caregiver. By staying married, the employed parent can continue insurance coverage by paying premiums for the other spouse, despite their having been legally separated. (Check and make sure the health insurer will cover both spouses after legal separation.)

Many people have strong beliefs about children growing up with their still-married parents. Religious beliefs aside, parents may reject the notion of a “blended family.” So long as both parents are still living, they prefer their children be raised inside the marriage without any possibility of a future step-mother or step-father.

Which Is Best, Divorce or Legal Separation?

Legal separation is a choice. If spouses are uncertain about divorce, they may obtain a decree of legal separation. They can hold back from obtaining a divorce decree for personal reasons, whatever those may be.

Depending upon religious, financial, and various personal factors, divorce may not be the best option for a couple struggling in their marriage. Those factors directly influence the type of separation a couple ultimately pursues.

A legal separation has the same requirements as divorce, including custody issues, property division, child support, and other financial matters. A family lawyer can help in these matters by making sure all the eventualities are covered adequately. Should the other spouse object to legal separation, then the petition automatically converts to a dissolution petition. (Which the petitioner can also do at any time, even after the legal separation is finalized.)

The primary difference between divorce and legal separation, though, is that at the end of legal separation a person cannot remarry. Generally, a long separation does not cause a person to lose his or her rights. But it can diminish certain legal arguments, such as the need for spousal support. Or that a parent should have equal parenting time, yet he or she has not been an active participant in the children’s lives during the entire period of physical separation. Have a plan.

Legal Separation from Covenant Marriage

Do you have a covenant marriage?

Consult an attorney with the Stewart Law Group about whether legal separation or divorce from a covenant marriage is the better alternative given your specific circumstances. Everyone’s situation is unique.

More complicated, but not complex, legal separation from a covenant marriage has additional statutory requirements. Under ARS § 25-904, the judge may enter a decree of legal separation from a covenant marriage after making any of the following findings:

1. The respondent spouse committed adultery;
2. The respondent spouse committed a felony with a sentence of death or imprisonment;
3. The respondent spouse abandoned the matrimonial domicile for a year or more;
4. The respondent spouse committed domestic violence or abuse;
5. The spouses have been living separately and apart continuously for at least two years;
6. The respondent’s habitual intemperance or ill treatment makes living together insupportable; or
7. The respondent habitually uses drugs or alcohol.

The petitioner, or innocent spouse, must allege one or more grounds for legal separation from a covenant marriage and prove his or her case by a preponderance of the evidence. All but one of the above-mentioned grounds requires an allegation of fault or marital misconduct.

Divorce from a covenant marriage also requires allegation of fault, but spouses may agree to divorce without any requirement that they live separate and apart for two or more years. This is an important distinction between legal separation and divorce from covenant marriage.

Property Settlement in Separation Agreements

With legal separation, all marital assets and debts are equally divided between the parties. In Arizona, assets and debts acquired during the couple’s marriage are presumed to belong to the community. Therefore, each spouse owns an undivided one-half interest in the assets and shares equal responsibility for marital debts. The court will divide community property equally between the parties unless there is reason for an unequal division (such as a separation agreement with different terms). The judge has broad discretion over the final division and distribution of community property. Knowing this, spouses often prefer to negotiate and arrive at a voluntary separation agreement.

The judge can depart from the presumed 50/50 split of community assets and debts when the couple has a separation agreement providing for an unequal division of their marital property. Every legal separation involves negotiation and settlement. Spouses may freely designate any of their assets as “community property” or “separate property.” Whenever a separation agreement is silent on an issue, however, the judge must make a determination that binds both parties.

Separate Property Is Not Divided in Legal Separation

Equitable Settlements in Arizona Divorce

Because separate property belongs to only one spouse, identifying separate assets and debts is the first step in determining what each party has the right to keep. A pre-marital asset will not lose its separate property character just because the owner later married.

Generally, the circumstances surrounding the asset’s acquisition will establish its character. Assets acquired before the marriage or given to one spouse during the marriage as a gift or inheritance are the separate assets of that party. What the spouse does with his or her assets thereafter may change the character, transmuting separate property into community property. The transmutation of property occurs by agreement between the spouses, by gift from one spouse to the other during the marriage, or by co-mingling separate property with marital property rendering it indistinguishable.

Always be mindful that if the other spouse wants a divorce, then the court cannot continue under the petition for legal separation. The case will be converted to a divorce or, alternatively, must be dismissed.

Talk to an experienced divorce attorney with Stewart Law Group about legal separation and the proceedings involved. Ask questions. Find out whether keeping the marriage intact or, alternatively, dissolving the marriage would be best given your specific circumstances.


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