Legal Separation
A Guide to Legal Separation in Arizona: Understanding Your Options
For many people in Arizona and beyond, divorce isn’t the best way to proceed with a domestic separation. After a close examination of the wants, needs, and situational demands of the separating couple and the family members that they share, legal separation often emerges as a far better choice for a variety of reasons.
Because it allows married couples to separate and live apart while still maintaining their legal status as married, legal separation can offer a number of distinct and attractive advantages over divorce. In lieu of an official dissolution of marriage, a legal separation establishes an official court-ordered agreement that stipulates important details concerning property division, child custody, child support, spousal support, and other crucial matters.
Benjamin Legal customizes separation agreements to meet the specific needs of each couple. No matter what method of domestic separation you choose to pursue, our legal team will take a proactive approach to advise you of its pros and cons, giving you both the time and the information that you need to make a decision that is right for you.
Read on to gain a better understanding of legal separation, including the significant ways that it differs from divorce. You can also learn about the various benefits of legal separation, how to file for a legal separation, and what to expect from a legal separation in terms of property division, child custody, and both child and spousal support.
frequently asked questions about legal separation
What is legal separation in Arizona?
Rather than pursue a divorce, married couples in Arizona can file for a legal separation agreement in court. This agreement takes the form of an official arrangement that outlines the terms of a domestic separation. These terms can cover matters such as child custody, child support, spousal support, and division of property.
As previously described, legal separation does not end the marriage in the eyes of the court and the government. This agreement merely allows the separated couple to part officially and make stable and reasonable financial and custodial arrangements regarding their lives going forward.
How is legal separation different from divorce?
Divorce and legal separation share a common goal: to allow each spouse in a married couple to separate from the other and ease the path to a life apart. To meet these ends, divorce and legal separation also tend to share similar agreement stipulations. For example, both legal separation and divorce property orders are permanent, final, and immune to modification in Arizona. However, any agreements regarding children are generally modifiable and subject to the unfolding of future events.
At Benjamin Legal, we know that circumstances constantly change, and so we place a firm emphasis on helping our clients prepare for and cope with changing circumstances. This is an important factor to consider when choosing between a legal separation and divorce.
Because couples remain legally married under the terms of a legal separation, they can avoid many of the painful aggravations and financial disadvantages that go hand in hand with divorce. However, they also face certain legal limitations. Most significantly, legally separated individuals cannot marry someone new without first seeking an official divorce.
In Arizona, the grounds for filing and underlying governing statutes for legal separation are essentially the same as those for divorce. But unlike divorce, both spouses must agree to file for legal separation in Arizona. It only takes one party to seek a dissolution or divorce for it to be granted by the courts.
How do I file for legal separation in Arizona?
To file for a legal separation in Arizona, you and/or your spouse must be a resident of Arizona or a member of the armed forces stationed in Arizona for at least 90 days prior to filing the paperwork. If you meet these requirements, there are three main steps to follow, and Benjamin Legal can guide you through all of them, simplifying and streamlining an otherwise highly intimidating process.
1. Start by acquiring and completing the appropriate forms to file a Petition for Legal Separation in the Superior Court of the county in which you or your spouse resides. A Petition for Legal Separation is filed in the same manner as a Petition for Divorce in Arizona. You can find filing fees and apply for either a fee waiver or deferral at the Administrative Office of the Courts. If you cannot afford to file, you may apply for a fee waiver or deferral at the same time of your filing.
2. After filing the Petition for Legal Separation, you need to serve a copy of that petition and its accompanying legal documents onto your spouse. This can be done by having a sheriff or other process server deliver the papers in person, having your spouse sign an Acceptance of Service, or by certified mail return receipt requested.
3. After the paperwork has been served, if you are unable to finalize an agreement with your spouse, you must go through the court process whereby a judge will consider the requests being made by each party for the legal separation. If the judge approves your Petition for Legal Separation, the agreement will be put in place to establish the terms of your domestic separation.
What are the benefits of choosing legal separation over divorce in Arizona?
From a legal perspective, the primary benefit of legal separation is that it allows couples to remain legally married while living apart. This allows some couples to retain the limited monetary advantages that their marriage provides. From tax reimbursements to military benefits, marriage often establishes a financial situation that one or both spouses grow to rely upon.
Separation also has other less tangible benefits, including allowing couples to take time apart to sort out their issues without completely ending the marriage. It provides a chance for reconciliation if the couple decides to give the marriage another chance. Even if they ultimately remain apart, a legal separation can provide a sense of emotional stability, both to spouses and their children, at a very difficult time.
What is the process for property division after a legal separation in Arizona?
During a legal separation in Arizona, property division is typically handled in the same manner as a divorce case using the following process:
- Both parties must make a complete, full, and accurate financial disclosure of all assets and debts.
- Once the financial disclosures have been made, the court will divide the marital property and debts equitably (fairly).
- Once the property has been identified, it is categorized as community property or separate property based on specific Arizona laws.
- If it is determined that the property of either spouse needs to be valued, experts are often utilized to allocate assets and debts as equitably as possible.
- Based on the valuation, the court will equitably distribute marital assets and debts, including bank accounts, real estate, investment portfolios, and all types of personal and real property and debts.
Because all property orders are permanent/final and cannot be modified in Arizona, it is important to plan and negotiate property division quite carefully. This is true in cases of divorce as well as legal separation.
How does child custody and child/spousal support work according to legal separation in Arizona?
In Arizona, child custody and support during a legal separation are decided in much the same way as they are decided in a divorce case. This means that, unlike property division agreements, any agreements regarding children and financial support are generally modifiable in the future, so long as there is a significant change of circumstance.
- Child Custody: The Arizona court has the power to determine the most appropriate child custody arrangement during legal separation. Custody can be granted solely to one parent or shared jointly between both parents based on the best interests of the child(ren), which considers many factors, such as: the mental and physical well-being of all parties, the child’s relationship with the parents or other close family members, which parent is more likely to allow frequent and meaningful parenting time for the other parent, the geographical distance between the parties, and the absence (or presence) of domestic violence.
- Child/Spousal Support: Under the terms of any legal separation, the court may order child support depending on the parenting time arrangement, child related expenses, and the income of each spouse. The court may also order spousal support if one spouse lacks the means of independent financial support. Both child and spousal support orders can be changed if income levels or other circumstances change. Parties can also agree for spousal maintenance orders to be non-modifiable to amount and duration in the future.