A legal separation in Arizona is similar to a divorce. The reasons for wanting a separation may be similar, including like a divorce, the couple will decide how to handle the separation with respect to their children, and what will happen to any pets, houses, cars, finances, and other property. If you are not sure whether a legal separation or a divorce is right for you, consider speaking to your experienced Arizona family law attorney familiar with legal separation in Arizona, to protect yourself and your family.
To get a legal separation, it requires going through the legal process with the local county Superior Court. Both parties have to 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 minor children or not.
Under Arizona law A.R.S. § 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.
Legal Separation vs. Divorce
In many ways, a divorce is very similar to a legal separation. However, a divorce only requires one person to file for a dissolution of marriage, but a legal separation has to have both parties in agreement to separate. The couple has to claim that they both desire to live separately and apart or that the marriage is irretrievably broken. The individuals separating will have to make similarly difficult decisions on dividing property and assets, and determine how to divide the parenting duties and responsibilities for any children involved.
Another way a legal separation is different than a divorce is that after a legal separation is granted by the court, the couple is still legally married. While they can live apart, and separate assets and debts from one another, they are still married under the law. That means that if one of the individuals later wants to get married to someone else, they will have to go through with a full divorce before they can remarry.
There are a number of reasons why a couple may seek a legal separation instead of a divorce. In some cases, the couple may not want a divorce for religious reasons. Additionally, there are economic reasons for a legal separation, to keep one party from being liable for the debts incurred by the other. Other times, the couple may be unsure if they are ready for the finality of a divorce, and want to try out separation before committing to a dissolution of marriage. It could also be a matter of timing, since a divorce in Arizona has a 90-day residency requirement.
Legal Separation Without Children
A legal separation without minor children involved can be a simpler process, especially if the couple agrees on how they would separate most of the property, debts, and assets. Without children, a legal separation primarily involves dividing property. However, even if no other people are involved, a legal separation can get just as contentious and emotional as a divorce.
Conflict over property distribution in a separation may have to do with legitimate disputes over who owns certain property, who should own certain property, who gifted certain property, who paid for certain property, or who brought certain property into the marriage. Anger, jealousy and other strong emotions can further complicate how people handle property division. Arizona is a community property state, which in most cases means that any property gained after the marriage becomes property of both individuals, and each may have a right to their share upon separation.
Where the parties cannot agree on property and asset distribution, the court may make a determination as to who gets what, and what property should be liquidated. Because a mutually agreed upon plan is preferred to a court-mandated property distribution plan, it may be in the best interests of both parties to agree on what to do with their property. In many cases, having an attorney to represent your interests can help to resolve many legal separation disputes.
Legal Separation With Children
Legal separation with children involved can be very complicated, in addition to all of the property division issues that occur where children are not a factor. Similar to a divorce with children, filing for a legal separation when children are involved will require a determination by the court as to the custody and decision-making authority for the children.
The court, children, and all parties involved may prefer a child custody plan that is mutually agreed upon; however, it is still up to the court to approve the childcare plan. A judge will determine the legal decision-making authority and parenting time allocation between parents, based on what would be in the best interests of the child.
When parents cannot agree on how to divide custody and decision-making, each parent may submit a proposed parenting plan to the court. The court will endorse a parenting plan that provides joint decision-making and maximizes parenting time in the best interests of the child. As part of a legal separation, the court may order one or both parents to provide a child support amount reasonable and necessary for the support of any children.
Legal Separation Lawyers in Tucson
Separating after a marriage is never an easy process, even when both parties know it’s the right thing to do. You may not know whether a legal separation or a divorce is right for your situation. Talking to your experienced lawyers will help you understand the potential benefits and drawbacks of a legal separation, and will help you make the decision that will be the best for you and your family.
At West, Elsberry, Longenbaugh and Zickerman, our legal separation and divorce attorneys are here to help individuals and families throughout Tucson. We will work with you and advise you on your options for a separation, including issues of child custody, parenting time, and dividing up property. Our Tucson family law attorneys are committed to addressing the individual needs of each of our clients and can assist you with all aspects of a legal separation or divorce.