Some Arizona couples choose a legal separation instead of a divorce when their marriages are irretrievably broken. The process of legal separation (governed by A.R.S. § 25-313) is similar to that of a divorce, but the couple remains married. In some cases, people obtain legal separations as a temporary measure until the couple’s divorce is finalized. In other cases, people may choose this direction to define the rights of both spouses instead of getting divorced. When a couple is legally separated, they are not able to marry other people because they are still married.
If couples reconcile, they do not need to file anything further with the court. People may choose separation over divorce for a variety of reasons, including their religious beliefs, as a method to define the rights of both spouses while their divorces are pending, to allow one spouse to continued access to medical benefits, or to preserve the rights to inheritance. Here is what you should know about the legal separation process in Arizona.
Do you have 30-60 minutes to talk about legal separation with an attorney?
Click Here to Schedule Free Consultation
Is Legal Separation the Best Option?
When people feel that their marriages will likely end, they can choose to either file for divorce or for legal separation. Many couples use legal separations to define their responsibilities and rights while they determine whether their marriage might work out or might end. A couple that has separated may serve as a trial period before the couple moves forward with the divorce. If they decide to divorce, they will need to file a separate action, however.
In order for a court to grant a decree of legal separation, it must find the following factors have been met:
- One party is either stationed in Arizona in the military or lives in the state;
- The marriage is either irretrievably broken or one or both of the spouses wants to live apart;
- If the marriage is a covenant marriage, any of the grounds for the dissolution of covenant marriages apply;
- Both spouses agree to the legal separation; and
- The court has considered child custody, child support, spousal maintenance, and community property division and has issued orders pertaining to them.
If one spouse does not agree to a legal separation, the other spouse may not obtain one. The other spouse is free to file a petition for dissolution instead, however.
How to Start the Process in Arizona
To start the legal separation process, one spouse can file a petition for legal separation with the Superior Court in the county in which he or she lives. The court will issue a summons, and the petitioner must then formally serve the other spouse with process. The other spouse will have 20 days to respond to the petition. If he or she disagrees, the court can convert the petition into a petition for dissolution (divorce).
Some couples choose to legally separate because they do not meet the state’s residency requirements for divorce. Under A.R.S. § 25-312, courts cannot issue divorce decrees unless at least one party resided in the state for at least 90 days before the divorce petition was filed. By contrast, the only residency requirement for a legal separation in Arizona is that one of the spouses must live in the state at the time of the filing. This allows the spouses to determine their responsibilities and rights during the time period before they are able to file a petition for dissolution.
If the couple has children, they must file a petition for legal separation with minor children. If they do not, they will file a petition for legal separation without minor children. The only grounds for a legal separation is that the marriage is irretrievably broken or that one or both of the spouses want to live apart. The petition must include all of the information that is detailed in A.R.S. § 25-314.
Handling the Terms of a Legal Separation
Like a divorce case, a legal separation may include many different provisions regarding child custody, parenting time, child support, spousal maintenance, and the division of financial assets and debts. The ability to determine each spouse’s rights and responsibilities is a key factor in why people choose legal separation over simply living apart. If a spouse simply moves out without having a legal separation in place, it will not be possible to enforce any of the verbal discussions that may have taken place between the couple.
The couple may negotiate all of the important issues that are involved in their legal separation. If they are able to reach an agreement, they will then draft a separation agreement. The separation agreement should contain all of the details concerning the property division, parenting time, child custody, child support, and whether one spouse will pay maintenance to the other spouse during the legal separation period. If the couple agrees that they want the legal separation but are unable to reach a full agreement, they can litigate the outstanding issues during a separation trial.
Getting legal help from the Cantor Law Group may help couples to anticipate potential problems that could arise so that they can be prevented. Drafting a tailored separation agreement that addresses all of the issues is important to keep unexpected problems from arising during the separation period. People should make sure to include all of their agreements in their separation agreement document. If they leave out agreements on side issues, they will not be able to seek enforcement of those side agreements in court.
When Children are Involved
If there are children involved, the petitioner must file the petition for legal separation with children as well as a few other forms. He or she must also file the following documents:
- Sensitive data cover sheet
- Child support form
- Preliminary injunction
- Parenting plan
- Affidavit of minor children
- The order and notice for the parenting education program
Other than the sensitive data cover sheet, all of the other documents must be served on the respondent spouse. He or she will then have 20 days to file a response to the petition. If he or she objects to the legal separation, the court will not grant it and will instead convert the case into a divorce proceeding. The court also will not grant a legal separation to a couple who has a covenant marriage.
If the other spouse agrees to the legal separation but objects to some of the proposed terms, he or she can contest the petition. The couple may then try to reach an agreement through negotiations or through an alternative dispute resolution method. It is possible for a couple to reach an agreement on most of the issues while leaving only one or a couple of issues outstanding. If this happens, it will still simplify the process because there will be less left to litigate.
Because of the process involved, a legal separation can take just as much time as a divorce can take. This makes it important for people to file request for temporary orders when they file a petition for legal separation so that their rights and responsibilities can be determined while their cases are pending.
Do You Need an Attorney During a Legal Separation?
Yes, it is a good idea for you to do so. An attorney highly trained in family law will advise you about the issues that could arise in the future and help you with negotiating the terms of your separation with your spouse. This might make it likelier that your separation will be smoother for everyone who is involved. To learn more, speak with our legal separation attorneys at the Cantor Law Group at 602.254.8880.