Legal Separation
Your Guide Through A Difficult Process
Questions frequently arise regarding the difference between a “divorce” and a “legal separation” in Arizona. For the most part, a divorce and a legal separation are fairly similar; however they do have some distinct differences that should be understood.
Regardless of which route you take, you should know that both a divorce and a legal separation will result in the division of all your debts and assets, the entry of child custody orders, the entry of child support orders, and may also include an order for an award of alimony, if appropriate.
It’s also important to note that if one party files for a legal separation and the other party files for divorce, the court is obligated to convert that legal separation case into a divorce case. A legal separation case may be different from a divorce case in that you are not considered to be legally single after the completion of a legal separation and you, therefore, cannot remarry.
Some reasons why people may choose a legal separation over a divorce is because their religious beliefs do not allow for divorce. Also, some health insurance plans allow group health insurance coverage even if the parties are legally separated, but not if they are divorced.
Find out more about:
DIVORCE AND FAMILY LAW
Child Custody, Legal Decision Making Authority and Parenting Time
Orders of Protection
Grandparents’ Rights
Prenuptial and Postnuptial Agreement
Legal Separation v. Divorce
In Arizona, a divorce completely dissolves the legal status of the marital relationship and restores both parties to the status of a single person. A legal separation, however, does not dissolve the legal status of the marital relationship but does terminate the marital community such that all assets and debts incurred by either party subsequent to the decree of legal separation remain the sole and separate property and debt of the spouse who acquired the property and/or debt.
There are three main reasons why you may wish to file for a legal separation rather than dissolution of marriage in Arizona: 1) you have been married less than ten years and wish to receive social security benefits; 2) you need to remain married to receive health and medical benefits under your spouse’s group health insurance plan, if permitted by the plan; 3) your religion prohibits you from seeking a divorce.
Starting a Legal Separation in Arizona
A legal separation in Arizona is obtained in the same manner as a divorce. In both cases, an initial petition is filed with the Superior Court. That petition is served on the other spouse and the parties either submit a settlement agreement resolving all of the issues in the case or the issues are presented to the court at a trial and the judge then issues final orders resolving the issues in the case. The procedural steps in an Arizona legal separation case are identical to the steps necessary to complete a divorce.
Converting a Legal Separation Into A Divorce During the Case
If you are currently involved in a legal separation proceeding, you may convert that legal separation into a divorce by amending your Petition for Legal Separation into a Petition for Dissolution of Marriage. If you are the Petitioner (i.e., person who filed first), you may do so by simply filing an Amended Petition for Dissolution of Marriage, so long as the opposing party has not filed a written Response to the Petition for Legal Separation.
If Respondent (i.e., the person responding to the Petition filed by Petitioner) has already filed a written Response to Petition for Legal Separation, Petitioner would first have to file a motion seeking the Court’s approval to file an amended petition to convert the legal separation proceeding into a divorce proceeding. Judges will routinely grant such a motion. Alternatively, Petitioner may seek Respondent’s agreement to convert the legal separation into a dissolution of marriage.
If you are the Respondent who has been served with a Petition for Legal Separation and you wish to convert the matter to a dissolution of marriage, all you have to do is file a Response to Petition for Legal Separation and Counter-Petition for Dissolution of Marriage.
However, if you are the Respondent and initially filed a Response to Legal Separation only (i.e., you did not ask to convert the legal separation proceeding into a divorce proceeding), you would be required to file a motion to amend your response to include a counter-petition for a divorce. Again, judge’s routinely grant such motions.
Obtaining a Divorce After a Decree of Legal Separation Has Been Issued
If the court has already issued a final Decree of Legal Separation and one of the parties wishes to later obtain a divorce, a new initial Petition for Dissolution of Marriage would need to be filed using the same case number as the legal separation case. You would need to notify the Court in that petition that a Decree of Legal Separation was previously issued and one of the parties wishes to convert the matter to a divorce.
