A married individual can obtain a legal separation instead of a divorce where appropriate and with an agreement between the parties. But what is a legal separation and why would individuals seek legal separation over divorce? What are the differences between the two? What are the benefits, if any? What are the requirements to obtain a legal separation?
What is a Legal Separation in Arizona and How is it Different than a Divorce?
One authority defines legal separation as an arrangement whereby a husband and wife live apart from each other while remaining married by mutual agreement. The mutual agreement aspect is important because it is one of the main requirements for a valid legal separation in Arizona. The applicable rule, A.R.S. § 25-313, states that a legal separation is only valid if five factors are met:
- 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.
- The conciliation provisions of § 25-381.09 and the provisions of article 5 of this chapter either do not apply or have been met (internal footnote omitted).
- 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.
- 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.
- 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. See A.R.S. § 25-313(1) – (5)
A divorce, however, can be defined as the legal ending of a marriage or, more specifically, the legal dissolution of a marriage by a court of law. Like with a legal separation, there are certain criteria that must be met in accordance with the rules, e.g., A.R.S. § 25-312.
There are two key differences between legal separation and divorce. The first is the requirement of how long one must live in Arizona to commence legal action. For example, to commence a legal separation action, one must only live in the state of Arizona. But to commence a divorce action, one must live in Arizona for 90 days prior to filing their petition for divorce.
The second difference is the requirement of mutual agreement for a legal separation. There is no agreement requirement to get a divorce in Arizona—Arizona is a no-fault state, meaning that one party need only show that the marriage is irretrievably broken.
Divorce and Legal Separation in Arizona—How are They Similar?
In Arizona, divorce and legal separation have many similarities, many of which are noted above. Another example of the similarities between the two is that they have similar effects on the marital community (the property/assets/debts) and child custody. Both legal separation and divorce:
- terminate the “marital community” after service is effected on the opposing party
- require a judicial determination regarding custody of the children if the parties have children
- require an equitable division of the parties’ community property.
The only difference between the two at this point is the legal status: in one instance the parties are legally married but separated, and in the other, the marriage is completely dissolved.
Divorce vs. Legal Separation—Procedure
The procedure for obtaining a legal separation in Arizona is the same as obtaining a divorce. In both cases, one party must file a Petition with the court requesting their desired relief-whether that be for a legal separation or a divorce. Then, the filing party must serve the documents onto the responding (non-filing) party. Both cases then proceed in accordance with the Arizona Family Law Rule of Procedure. At any time during the litigation, either party can request to convert a Petition for Legal Separation to a Petition for Dissolution of Marriage.
Divorce vs. Legal Separation—Effects on Marital Community
Both divorce and legal separation terminate the marital community. But before discussing this it is important to have a basic understanding of the term “marital community.” In Arizona, when two people get married, the law deems that the two married people now constitute a “community.” This can be a confusing concept.
The community itself can be thought of as a fictional third person in a divorce process. For example, there is one spouse and all of their separate belongings they brought into the marriage, another spouse with their similar separate belongings, and then there is the “community”—which is a representation of everything earned, borrowed, purchased, or generally acquired during the marriage. Since Arizona is a community property state, the courts are concerned with equitably dividing the property acquired by the community.
But when a petition has been filed and served onto the opposing party, the community terminates at that point. And because the marital community is no longer intact after service of the aforementioned petition, therefore parties can no longer incur debt that the other party is obligated to as it relates to community property laws.
Assets, such as real property, income, or any investments obtained or earned by one party are no longer subject to community property laws. Finally, when there are minor children that are common to the parties’ marriage, parenting time, legal decision-making, and child support must be determined.
The Benefits of a Legal Separation as Opposed to a Divorce in Arizona
At this point, you may be wondering why a person would opt for a legal separation as opposed to a divorce. Maybe the parties are not ready to end the relationship altogether but would rather just be legally separated. Insurance benefits could play a role in the decision. If both parties are still legally married and therefore an insurance provider may still carry the other party on the applicable plan. Social security benefits could be another issue. Sometimes people choose not to divorce because of their religious beliefs.
If you are contemplating divorce or legal separation in Arizona, and have additional questions about which may best fit your needs, please do not hesitate to contact Burggraff Tash Levy PLC to schedule a confidential, no-pressure consultation with one of our Scottsdale, Arizona divorce lawyers.