Everyone understands what a divorce is. But people tend to have much more murky ideas about what “separation” means. Is it just living apart from your spouse? Is it a legal status? Is it how you refer to yourself when you’ve filed for divorce, but the divorce is not yet final?
What is legal separation and why file for separation?
A legal separation in Arizona is a status that lets couples live apart, with a written agreement filed in court, governing their rights and responsibilities including, but not limited to: the division of the parties’ property and debts, issues of custody, parental access, spousal maintenance, child support, and other components. In many ways, legal separation is like a trial divorce, with one important distinction: the couple is still legally married, and neither party can marry someone else without proceeding with the dissolution of marriage.
Why not just verbally agree to live apart until one of you decides to file for divorce, or you both decide to reconcile? For one thing, taking the step to file a legal separation makes sure both of you are on the same page with what is happening in your marriage. It gives the court the ability to take action if one of you isn’t living up to the filed agreement. We’ve heard clients say that legal separation also makes the status of a separation “more real.”
In that case, why not just go ahead and divorce altogether? Some people want to remain married for religious reasons. Others simply are not 100% sure they really want a divorce and want to “test it out.” Some people depend on health insurance or other benefits that they receive through a spouse. (If this is your situation, read your policy carefully; some insurance companies now treat legal separation, like divorce, as a terminating event for a spouse’s coverage.)
Couples may also choose legal separation so that one spouse can retain certain military benefits or to be married long enough to qualify for certain Social Security benefits through a spouse. There may, for some couples, be a tax advantage to remaining legally married. Last but not least, someone who wants to file for divorce in a particular Arizona county must have lived there for ninety days. However, there is no such time requirement to file for separation. After the ninety days are up, the separation can be modified into a divorce if needed.
Filing for Legal Separation in Arizona
To get a legal separation, it requires going through the legal process with the local county Superior Court. Both parties must agree to the legal separation and file the necessary documents with the court. The process for a legal separation may be different depending on if the couple has children or not.
Under Arizona Revised Statute § 25-313, the court may enter a decree of legal separation if it finds each of the following:
- That one of the parties was domiciled in Arizona at the time of filing, or is a member of the armed services stationed in Arizona.
- The conciliation requirements do not apply or have been met.
- The marriage is irretrievably broken or one or both of the parties’ desire to live separate and apart.
- The other party does not object to a decree of legal separation. If the other party objects to a decree of legal separation, the court may amend the pleadings to seek a dissolution of the marriage (divorce).
- Where applicable, 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.
If these requirements are met, you may file a “Petition for Legal Separation without Children” or a “Petition for Legal Separation with Children” in Superior Court. The petition asks for basic information about you, your spouse, your marriage and your children. Compile a settlement agreement by listing any property you own and specify whether the property should go to you or to your spouse. Generally, the court will split the marital property equally unless good reasons exist not to do so.
Gather any supporting documents. If you have children, the required documents include an affidavit regarding minor children, a child support worksheet and a parenting plan. On the forms, specify where the child will be cared for and how you will organize parenting time.
File and serve the documents. Two copies of everything, in addition to the original that the court keeps, must be presented as well; these will be for you and your spouse. Your attorney can advise if the local court requires any additional forms besides those listed above. The filing fee for the petition for legal separation currently is $234 at the time of writing. Have your spouse served with the papers. If you are working with an attorney, he or she will arrange for service. This is important because if your spouse is not properly served, your case cannot proceed.
Note: In Arizona, it is mandatory for the separating parents of minor children to attend classes in the Parent Information Program within 45 days from the date the Petition for Legal Separation is served.
You are not legally required to have an attorney to file for separation, but it helps in two big ways: first, an experienced Arizona family law attorney is familiar with the necessary documents and procedures and will save you a lot of time, effort, and stress. Even more importantly, an attorney can advise you of the legal consequences of your actions and protect your interests when it comes to the essential step of preparing the separation agreement that must be filed with the court.
Want to learn more about legal separation, or about filing for divorce? Contact us at Shaffer Family Law online today or call us at (480) 470-3030 for a consultation to explore your options.