Legal Separation in Arizona | Legal Separation vs Divorce
We strive to provide answers to all of your questions regarding legal separation and family law. We encourage you to view our Arizona Legal Separation | Frequently Asked Questions page, as well as our Family Law Blog, to obtain more information about all aspects of family law.
Arizona Legal Separation Laws
The most significant difference between a legal separation and a divorce is that the spouses remain married and cannot, therefore, remarry in the future without subsequently converting the legal separation to a divorce.
A client may elect a legal separation in lieu of a divorce if his or her religious principles do not allow a divorce or, in some circumstances, to ensure continuous access to health insurance through the other spouse’s group health insurance plan.
An Arizona judge is authorized to issue a decree of legal separation, pursuant to Arizona Revised Statute 25-313. Unlike a divorce which requires a party to have been domiciled in Arizona for at least ninety days, a spouse may be domiciled in Arizona for less than ninety days to file for a legal separation.
A Preliminary Injunction is an Order of court that is immediately issued by the Clerk of the Superior Court when the initial Petition for Dissolution of Marriage or Petition for Legal Separation is filed. That Preliminary Injunction is immediately effective against the spouse who filed the Petition for Dissolution of Marriage or Legal Separation, but is not effective against the other spouse until he or she is served with the Petition, Preliminary Injunction and other related documents that are required to be filed with the original Petition.
The Preliminary Injunction prohibits the transferring or concealing of assets, harassing or assaulting either party, removing a child from the state of Arizona, or removing either party or spouse from any existing insurance coverage.
What Happens in a Legal Separation Case in Arizona
In the state of Arizona, legal separation procedures are almost identical to Arizona divorce proceedings. Similar to a divorce case, a Court in an Arizona legal separation case is required to divide the parties’ property and debts, enter orders providing for the care and custody of the parties’ children, order child support and, if appropriate, order one spouse to pay alimony (“i.e., “spousal maintenance”) to the other spouse.
Starting A Legal Separation Case in Arizona
A legal separation in Arizona is obtained by filing a Petition for Legal Separation, a Summons commanding the other spouse to file an Answer to the Petition for Legal Separation and other related documents. Those initial documents are filed in the Superior Court in the particular county in which you or your spouse resides.
Only one spouse is required to be domiciled in Arizona at the time the Petition for Legal Separation is filed. For example, a wife residing in California may file a Petition for Legal Separation in an Arizona court, so long as her husband is domiciled in Arizona.
The clerk of the Court will require several copies of all documents when they are filed, so they may file the original documents with the court, provide a copy to you containing the clerk’s filing stamp, and a copy containing the court’s filing stamp for you to serve on your spouse.
You are then required to either serve the other spouse with all court stamped documents by a private process server, a law enforcement officer, or obtain the other spouse’s signed and notarized affidavit listing the documents he or she received and a statement that he or she waives formal service of process.
The remaining procedures for securing a legal separation either by agreement of both spouses or through a trial before the court are outlined in the divorce section of our website, so please feel free to review those sections for additional information.
A Decree of Legal Separation Terminates All Financial Ties Between the Spouses
Although the parties are still married after a Decree of Legal Separation has been issued by the court, the spouses no longer have the same property rights or responsibilities they had before the Decree of Legal Separation was issued.
Specifically, all of the assets and debts subsequently acquired by either spouse will be treated as that spouse’s sole and separate property and obligations as a result of the prior termination of the marital community by the Decree of Legal Separation.
Contesting a Legal Separation in Arizona
Although a legal separation in Arizona may provide a better option for a spouse, the Arizona court may only proceed with a legal separation if both parties agree to do so. The court is required to convert the case from a legal separation to a divorce proceeding if either spouse asks the court to do so; either before or after the final Decree of Legal Separation is issued by the court.
Converting a Legal Separation Into a Divorce Before a Divorce Decree has Been Signed
You may convert a legal separation into a divorce either before or after a final Decree of Legal Separation is issued by the Court; although the procedures for doing so vary depending upon which spouse is attempting to convert the legal separation into a divorce, what has been filed in the case by either or both parties, and when the request to convert the legal separation into a divorce is requested. We have outlined several possible scenarios below to fully address these different scenarios.
Scenario Number One: If you are the person who filed the initial Petition for Legal Separation and the other spouse has not yet filed an Answer to that Petition, you may simply submit an Amended Petition stating that it is now a Petition for Dissolution of Marriage.
Scenario Number Two: If you are the person who filed the initial Petition for Legal Separation and the other spouse has filed an Answer to that Petition, you must either submit a stipulation signed by both parties agreeing to allow the Petitioner to file an Amended Petition to convert the case to a divorce or you must file a motion with court requesting leave of the court to Amend the initial Petition to a Petition for Dissolution of Marriage. Such motions are routinely granted by the Court.
Scenario Number Three: If you are the person who was served with the Initial Petition for Legal Separation and wish to convert the case to a divorce and have not yet filed an Answer, you can simply file an Answer to Petition for Legal Separation and Counter-Petition for Dissolution of Marriage in one single pleading.
Scenario Number 4: If you are the person who was served with the initial Petition for Legal Separation and already filed an Answer that did not contain a Counter-Petition for Dissolution of Marriage, you would need to obtain a stipulation with the other spouse to convert the case to a divorce or file a motion with the court requesting the court’s approval to file an Amended Counter-Petition for Dissolution of Marriage.
Scenario Number 5: If you are either the Petitioner or the Respondent and the court has already issued a final Decree of Legal Separation and you later want to obtain a divorce, you would file a new Petition for Dissolution of Marriage with the Superior Court using the same case number that was assigned in the underlying legal separation case. The other spouse would be required to file an Answer and the parties could simply submit a Consent Decree of Dissolution of Marriage incorporating all of the orders that were initially ordered by the Court in the prior Decree of Legal Separation.
It is very important to understand specifically how to reference the prior orders contained in the prior Decree of Legal Separation to ensure you do not change the effective date of those prior orders. There are several important factors to consider in terms of the language that should be used when converting a legal separation into a divorce that are far too complex, given the numerous possible scenarios, to present here, so please contact a competent Arizona legal separation attorney before converting your Arizona legal separation into a divorce in Arizona.
Contact Our Scottsdale Arizona Legal Separation Attorneys
Contact us today at (480) 305-8300 to schedule your consultation with one of our Scottsdale Arizona legal separation attorneys regarding Arizona legal separation or any other Arizona family law matter.