Divorce vs Legal Separation

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Should My Spouse and I Legally Separate or Divorce in Arizona?

If your marriage is troubled, you may be considering making it official so you can move on. A divorce, or a dissolution of marriage, might not be your only option to end the marriage. Depending on your circumstances, a legal separation may be preferable. Annulments are only available in very limited situations. Ending your marriage through any means is a stressful experience, so you want to make sure you pick the right option the first time. You don’t have to make this selection on your own. Our experienced Arizona family law attorneys offer free consultations to let you know whether you should file for divorce or a legal separation. Fill out our online form or call 480-833-8000 to schedule today.



What is the Difference Between a Divorce and a Legal Separation?

When you file either a divorce or a legal separation, a judge is assigned to your case to oversee issues like property division, spousal support, child support, and child custody. This will come with significant legal expenses with either option. But after a divorce in Arizona, the spouses are no longer married. Spouses remain legally married after a separation, meaning they can’t get remarried to new partners. That also means that spouses can get legally separated and then divorced, but not divorced and then legally separated. They would have to remarry for that to occur. Separated spouses continue to have access to insurance and tax benefits because they are still legally married. Arizona is a community property state, and the spouses will stop accruing community property after both a divorce and a legal separation.

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Why Would I Pick a Legal Separation?

One would have to go through all the same legal procedures for a legal separation that he/she would in a divorce. So, you may be wondering when a legal separation would actually be the preferable option. Legal separation can be better for spouses who aren’t completely sure about getting divorced. In some cultures and religions, it is unacceptable to get divorced, so a legal separation provides a workable loophole. Because you have to deal with all the same issues as divorce, a legal separation is also more feasible when the spouses agree on property division, spousal maintenance, child support, and child custody. Some spouses may be confident that they’ll never remarry and want to keep the insurance and tax benefits. No matter your reasoning, a legal separation could be better for you than a divorce in many ways. You can discuss your options with a dedicated Arizona family lawyer by scheduling your free consultation at 480-833-8000.

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Because of all the issues that must be resolved in both, filing for legal separation or for dissolution of marriage are complicated processes in Arizona. Filing a legal separation could be a huge waste of time and effort if you are just going to want to be divorced in a few years. But a divorce done improperly could impact your financial situation for years to come. It could also affect how much time you get to spend with your children and the overall role you play in their lives.



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Hiring an experienced attorney is a priority. Few clients are familiar with Arizona family law.  Most Arizona residents are not confident in the ability to deal with opposing counsel and the court. This is why it is a good idea to hire a lawyer to act as your legal advocate in this matter. The divorce team at My AZ Lawyers can represent you at a fraction of what our competitors cost. We offer low payment plans to get your case started, and monthly payment plans that make skilled family law representation more affordable. It all begins with your free and confidential initial consultation. Call 480-833-8000 or fill out our online form to let us know when you’d like to speak to one of our experienced divorce lawyers.



Our experienced AZ Family lawyers take a look at some of the most asked questions that people have when deciding to divorce or legally separate in Arizona. It’s better to be safe than sorry. Thus, if you are having a family law issue in Arizona, do not hesitate to call our team of AZ Divorce and Family Attorneys. 

Sometimes, when spouses decide to get divorced, they will announce to their friends and family that they’re “separating.” However, a legal separation and a divorce, also known as a dissolution of marriage, are two different things. Therefore, you should read on to learn more about legal separation in Arizona – if you have additional questions, call or use our online form to schedule your free consultation with one of our experienced family law attorneys.

If my spouse and I move out and no longer share a household, are we separated?

While you may be separated in practice, there actually is a formal process to go about filing a legal separation. You and your spouse will sign a separation agreement which is recognizable in a court of law. This will outline how several types of issues will be addressed during your separation- child custody, child support, spousal support, and property division. Until this agreement is ordered by the court, you will still legally be viewed as a married couple.

Can we be legally separated if we still live together?

There actually is no requirement that the spouses live apart during a legal separation. Just because spouses who have broken up still live together doesn’t necessarily mean that they are considering getting back together. Oftentimes, financial constraints make it difficult for spouses to live separately until a legal separation divorce is finalized. This won’t affect the judge’s rulings in your separation or divorce.

What are the differences between a divorce and a legal separation?

A divorce and legal separation are very similar. Both deal with issues like support payments, child custody, and property division. The spouses will begin accruing debts and income as separate property. However, a marriage remains legally intact during a separation. That means one spouse can keep a separated spouse on their insurance policy, and continue filing taxes as a married couple. A spouse cannot remarry after a legal separation- a divorce must occur first. And if divorced spouses change their minds and reconcile, they will need to remarry, while a legal separation can be reversed.

Is a legal separation the same thing as an annulment in Arizona?

No. An annulment cancels a marriage so that it legally never occurred. It is used in limited circumstances, like when one spouse wasn’t old enough or had the capacity to consent when the marriage occurred. Because a marriage technically didn’t occur, the spouses don’t need to sort out standard divorce/separation issues.

What reasons might someone seek a legal separation as opposed to a divorce in AZ?

There are several reasons that spouses choose legal separation before or instead of a divorce. If the spouses don’t meet Arizona’s 90 day residency requirement to file divorce, they may need to pursue a legal separation until the residency requirement is met. Or, the spouses may be using a legal separation as a trial run for a divorce. In some cultures and religions, divorce is impermissible but legal separation is an acceptable compromise. Other spouses choose a legal separation because they want to maintain insurance and tax benefits that would be lost in a divorce.

What is the process of legal separation in Phoenix and Tucson, AZ?

The process of a legal separation is surprisingly similar to that of a divorce. One spouse will file a petition with the court, which will be served on the other spouse. The spouses will then try to come to an agreement on how to determine issues like support, custody, and property division. If they are unable to reach an agreement, the judge will need to rule on the issues in a trial. These orders will be finalized, and the spouses will officially be legally separated.

Will the judge rule differently on custody issues during a separation rather than a divorce?

Custody issues are always decided with a child’s best interests in mind, and that doesn’t change in a legal separation. Arizona family law judges don’t have a preference between mothers and fathers, and try to have the child spend equal amounts of time with both. The judge will look at several other factors, like the parents’ relationship with the child, the child’s special needs, any physical or mental health issues in either parent, the child’s relationship with each parent’s household members, the child’s adjustment to a new environment and community, and more. Except for when the child is in danger, custody can only be modified after 12 months have passed since the last orders.

Can I receive child support and/or spousal maintenance during a legal separation in an Arizona family law case?

Just like in a divorce, child support and spousal maintenance can be ordered as part of a legal separation. Child support will be based on a combination of the parent’s incomes and the amount of parenting time with each parent, as well as other factors like the child’s special needs. The factors used to determine if spousal maintenance should be paid are different. The spouses’ relative incomes, ages, length of marriage, relative earning capacity, and whether one spouse made career sacrifices for the other spouse’s career are among them. A spouse who out earns the other may also be required to pay for their spouse’s attorney’s fees.

How will the AZ Family Court split our property during a legal separation in Arizona?

Property in Arizona will be divided in a legal separation, just as it would in a divorce. In Arizona, property is divided using community property law. In a community property state, everything acquired during the marriage is split evenly in a divorce. Everything acquired before the marriage, or during the marriage as a gift or inheritance, is separate property. Splitting property becomes more difficult when there is commingling, transmutation, or other factors present. Splitting up pensions and other retirement accounts is also complex and requires a QDRO, or a Qualified Domestic Relations Order.

Can my spouse and I divorce after a legal separation?

A legal separation doesn’t have to be permanent if you or your spouse decides to move forward with a divorce. Therefore, your legal separation can even be converted into a divorce before completion. Most of the terms from your legal separation will be applied to a later divorce. However, child custody and child support can be modified in a divorce if circumstances have changed.  Contact our experienced AZ Divorce lawyers for assistance.

If one spouse wants a separation and the other wants a divorce, what will the Arizona Family Court order?

Unless you are in a Covenant Marriage, only one spouse needs to want a divorce for it to be granted in Arizona. So if one spouse wants to separate and the other wants to divorce, the judge will let the divorce proceed. In a Covenant Marriage, divorce will only be granted if one of a few factors are met, including living separately for at least one year.

If my spouse and I reconcile after a legal separation, do we need to remarry?

Technically, your marriage was never dissolved during a legal separation. That means you won’t need to legally remarry after reconciling with your spouse. To reverse a legal separation, the spouses will file a Motion to Vacate Order of Legal Separation. This petition states that the couple have reconciled and no longer wish to be separated. A copy of the original orders should be attached, and potentially other supporting documents that could be relevant to your case. Once both couples have signed, the petition and any accompanying documents should be filed in the same courthouse where the separation orders originated.

What if I am in a Covenant Marriage?

Arizona is one of the three states that offers covenant marriages, so you might need to know how that changes a divorce and legal separation if you’re reading this. They represent a small percent of marriages in Arizona, and require a special declaration in the marriage license application and premarital counseling. In a covenant marriage, if both spouses don’t agree to a divorce, it will only be granted under limited conditions. Some of those conditions include incarceration, drug and alcohol abuse, and infidelity. The conditions for a legal separation from a covenant marriage are set forth by A.R.S. § 25-904, and are almost the same as the requirements for a covenant marriage divorce. Getting a separation or divorce from a covenant marriage is far more complicated than from a standard marriage. You will need to provide evidence and testimony as to why you want a divorce rather than filing a no-fault divorce. Discuss your options with an Arizona divorce attorney for free by calling 480-833-8000.

Family Law Requirements

Family Law Requirements for Arizona In Arizona, you or your spouse must reside here for at least 90 days before you can file a dissolution of marriage or legal separation here. Your divorce can’t be granted until at least 60 days have passed from when your divorce petition was filed. If you have minor children with your spouse, your children must reside in Arizona for at least 180 days before you can file child support or child custody cases here. Once you have child support or child custody orders in place, they can’t be modified for at least 12 months, unless the child is in danger.

Property division orders are permanent and almost impossible to overturn. Spousal support could be permanent, or could last for a set amount of time. Arizona is a community property state, so contributions to the marital estate can be both financial and non-financial. That means that all assets and debt acquired during a marriage should be split between the spouses equally if they divorce, regardless of how much each of them earned during the marriage. Property that is acquired before the spouses marry, or at any time when they receive it by gift or inheritance, is considered that individual spouse’s separate property.

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Legal Separation Service of Process 

After filing a petition for either a legal separation or a divorce, you are required to have it served on your spouse. If you know where your spouse lives, you can have it done by a sheriff or a registered process server. You will need to ask the judge for permission to use alternative service methods if you can’t locate your spouse. Your spouse will have a deadline of 20 days to file a response to the petition if they live in Arizona. In the case of your spouse living in a different state, they will have 30 days to file their response.



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Your spouse doesn’t must respond in 20-30 days, or you can ask the court to proceed by default. Also, if your spouse doesn’t respond to the application and affidavit of default within 10 days, you can request a hearing where the judge will grant everything you asked for in your petition for legal separation or dissolution of marriage. For any questions you have about serving your spouse or applying for a default, call 480-833-8000 to schedule your consultation with our firm.

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