What Is a Legal Separation in the State of Arizona?
Legal separation in Arizona refers to a legal process where a husband and wife or a domestic partner or spouse tells the court that they are moving toward divorce. With a formal legal separation, each spouse will have a Decree of Legal Separation which has the effect of permanently dividing property and assets while allowing the parties to remain legally married and carry forward with the obligations, terms and rights of the divorce decree if they desire at some later time. It’s just as it sounds, you’re separating but without divorce. In the United States, there are no federal laws on whether to give legal effect to a legal separation . Therefore, each state makes its own laws governing legal separations. In Arizona, these laws are found in Arizona Revised Statutes (A.R.S.) 25-900 through 25-932.
Unlike annulments and divorces, legal separations contain very limited options for legal action. When the court grants a legal separation, it is a legally binding document that divides assets, debts, rights and responsibilities. Legal separations may also provide for temporary or permanent spousal support, child support, custody and parenting time. However, unless stated otherwise in the Decree, at any time after a legal separation, either spouse may file for divorce. While legal separations in Arizona are somewhat unusual, they do exist.
Finding Financial Benefits from Legal Separation
In addition to the potential emotional and psychological advantages of legal separation over divorce, there are some possible financial advantages. In cases with children, tax implications may be a concern. Consider the federal Child Tax Credit, which can generate up to $1,000 per child under the age of 17 at year-end. The credit is available to taxpayers whose modified adjusted gross income is up to $75,000 if single or $110,000 if married. For divorced or legally separated parents, only the custodial (residential) parent is able to take this credit. In some cases, parents can come to an agreement to allow the non-residential parent to take the credit every other year or divide it proportionately; however, the IRS must be notified of these arrangements on the correct tax form(s) in a timely manner.
Spousal support (formerly known as alimony), either during the period of separation or after the divorce, may be lower than it could have been if a couple decides not to legally separate. The Arizona Supreme Court has long held that a legal separation and divorce are legally equivalent for spousal support purposes. Although a court will consider criteria present during a marriage to determine whether spousal support is awarded, the duration and amount of the spousal support award is determined more by the needs of the spouse seeking the support and the payor spouse’s ability to pay. Because parties can agree to spousal support during a period of legal separation, they often reach a more amicable resolution than in a divorce. If the parties are satisfied with the terms that they negotiated (usually reflected in a court order entered prior to the legal separation), a divorce may be as simple as filing a motion to dissolve the temporary legal separation or a joint petition to dissolve the legal separation. However, with a legal separation, neither spouse is legally able to remarry.
Preserving Benefits and Responsibility Pursuant to Your Marriage
While a legal separation may be the best option for some couples, it is exactly this equity that is eliminated by divorce. In Arizona, a party is entitled to potentially preserve life insurance and health insurance benefits during and after the marriage. These benefits cannot be preserved upon a divorce because divorce extinguishes the marital assets of the other party. That is, if a party is required to provide benefits to a spouse in the event of a divorce, the divorced spouse has a vested property interest in those assets. Further, an individual who is receiving social security benefits is entitled to continue to receive those benefits up until the divorce is filed. The reason for this is quite simple, an individual receiving social security benefits cannot support themselves but for those benefits. As such, the law is designed so as not to disenfranchise individuals from their only source of support.
Possession of Legal Rights and Protections
As you can see from the previous examples, one of the numerous advantages that a legal separation in Arizona provides is the ability to obtain a court order that will legally divide up your assets, protect your from third parties abusing your assets, award child custody and parenting time orders, dictate what is to happen to your joint debts and provide an eligibility for a divorce. If a person who is considering divorce in Arizona is concerned that his or her spouse may run up debt, liquidate assets or even begin dating with a potential new partner during the period between filing for divorce and finalizing the divorce, one solution may be a legal separation in Arizona. When you file a legal separation in Arizona you cannot go ahead and get a property division order, or a custody order or a spousal maintenance (alimony) order until there is a period of time has gone by. Arizona Revised Statute § 25-313 provides that the earliest a judge can grant the above cited relief is sixty days after the case is filed. This means you can file a legal separation and then have a judge sign property division, custody / parenting time orders and any other relief you are asking for in that 60 day time period.
Emotional Benefits and Religious Considerations
Many people experience emotional and religious reasons for choosing Legal Separation over Divorce. Often, religious teachings send some out of conflict previously seen between the two options. But spiritual input may also send others in the other direction, teaching that for a marriage to dissolve while still one partner being committed to that marriage is immoral.
The idea, however, that one is going against their religion by pursuing divorce with a spouse that refuses legal separation is likely not to be entertained by the courts. The courts are reluctant to get involved in what they see as religious matters. Some courts have actually refused to hear cases involving divorce in general while others have flatly stated that lack of agreement to a legal separation by one of the spouses isn’t going to put an end to any divorce case.
While Divorce proceedings and eventual Divorce may present real emotional problems for some people , legal separation does not entirely eliminate these problems. The process and resulting paperwork are similar, sadness can persist as the couple’s union is terminated, health insurance coverage may be terminated, and marital assets have to be divided. The loss of some of the privileges enjoyed in marriage may lead to anger or depression, but loss and transition are all part of the healing that people experience as they face separation from their spouse.
Obtaining a Legal Separation in the State of Arizona
To initiate the legal separation process, at least one spouse (the "Petitioner") must file a Petition for Legal Separation with the appropriate Arizona county court. The filing spouse must also prepare several documents for filing with the Court. Typically, these documents include Summons, Preliminary Injunction, and Notice of Right to Convert to Dissolution. Once these documents are filed, the Petitioner must arrange for service upon their spouse (the "Respondent"). Service can be arranged in one of several ways.
Following service of the Petition for Legal Separation and related documents upon the Respondent:
Obtaining a legal separation generally follows the same steps as obtaining a divorce. Both processes require the appointment of a judge, discovery to learn about assets and debts, drafting and exchange of settlement proposals, and similar options for alternative dispute resolution as well as preparation for trial. However, the Court will not order that any property be divided, awarded, or transferred as part of a legal separation because you are still legally married. As such, property division is a part of two separate (but related) processes. They are legal separation and divorce.
In short, the easiest way to understand legal separation in Arizona is that it is a decree which is unlimited in duration but has many of the same attributes as a decree of dissolution of marriage (divorce).
Potential Challenges to Consider
Any discussion of legal separation must include the many potential challenges and considerations associated therewith. For example, while parties can decide whether or not to use attorneys to represent their interests, it must be pointed out that a good Arizona family law attorney is an invaluable resource to help you identify and address potential issues.
It is the parties’ responsibility to determine whether or not they will be represented by counsel and the extent of the representation; however, if matters become contentious (and often they do) it may then be necessary to go to court, which may result in costly attorney fees. Unfortunately, there are few formal controls on the legal separation process; therefore, these situations can quickly become contentious. A common problem involves spousal support ("maintenance"). If one spouse has been out of the work force for any significant length of time, it may be appropriate to have maintenance determined pursuant to the statutory factors for divorce. However, judges have little to no patience for folks who have been out of the labor force for months or years, then seek legal separation and support, only to reconcile the next day. Judges tend to believe this demonstrates a lack of regard for the court process and, as such, penalize that person by denying requests for spousal maintenance. Another common issue involves property division. While all marital assets and debts are subject to division and/or allocation upon marriage dissolution, whether by trial or agreement, there are fewer rights in a legal separation — and courts will not divide property until one year after a legal separation is in place, barring unusual circumstances. While there are many benefits of legal separation – whether to aid reconciliation or simply to solve immediate problems (e.g. insurance coverage), there are just as many challenges. From maintenance to child support calculations and parenting time schedules, there remains much to be decided.
Legal Separation vs. Divorce in Arizona
When deciding whether to pursue legal separation or divorce, there are several crucial factors to consider. Most importantly, it is vital to take the necessary time to understand how each option will impact your life. While divorce is the more permanent measure, legal separation offers many advantages that make divorce unnecessary. Legal separation, for example, allows you to maintain a sense of normalcy and better prepare for the future. Many people find that if they indicate an interest in pursuing legal separation, that goal is enough to wake their spouse up to the idea of seeking reconciliation.
Some factors that should be considered when making your decision include: If you file for divorce, you also stand to lose all of the benefits of legal separation. When parties are legally separated, they are still married-but live apart. Most importantly, they are able to utilize those benefits that apply to parties who are separated but not yet divorced. The application of these benefits can result in substantial savings, particularly if you have children or a house .
Finally, the option to separate rather than divorce is often used by people seeking to utilize the waiting period. In Arizona, you must wait until 60 days have passed to finalize a divorce or legal separation. This waiting period is often enough to spawn reconciliation. Separation gives people the ability to take a break while also holding the real possibility that money will be saved on a finalized divorce.
There are many different reasons to separate rather than divorce. Staying married and living apart also ensures you will have access to your spouse’s insurance, opens up potential tax benefits now and in the future, and allows you to avoid the considerable costs associated with divorce. Separate living arrangements may also be helpful if you suspect that your spouse will be fighting dirty or using manipulative tactics during the proceedings.
If you want to know more about the rights of a legally separated spouse in Arizona, speak to an experienced legal professional. They can explain the benefits of separation versus divorce and help you navigate the intricacies of this important step.
