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Legal Separation Laws in Arizona
Arizona legal separation laws are not much different than the divorce laws that exist in Arizona. We want to discuss the similarities, as well as the differences, between Arizona legal separation laws and Arizona divorce laws.
We will also discuss the benefits and drawbacks of both a legal separation and a divorce, so you are more informed to make the best choice for your situation.
Similarities of Legal Separation Laws and Arizona Divorce Laws
Both legal separation cases and divorce cases are governed by the statutes set forth in Title 25 of the Arizona Revised Statutes. The court must divide all of your community property and debts, pursuant to Arizona Revised Statute Section 25-318. Pursuant to that same statute passed into law by the Arizona State Legislature, the court must also assign to each spouse all of his and her sole and separate property.
Pursuant to Arizona Revised Statute Section 25-403, the court must enter child custody and parenting time orders which the judge believes is in the best interests of your children. You may submit an agreed-upon parenting plan for the court’s approval.
You should know the court can reject your settlement relating to the children if he or she does not believe it is in the best interests of your children, which it rarely does. If you do not resolve issues relating to your children, you will be required to attend a trial after which the court will decide those matters for you.
Pursuant to Arizona Revised Statute Sections 25-319 and 25-310, the court can enter orders for spousal maintenance and child support. The court will only order child support in an Arizona legal separation if the court finds the spouse seeking spousal maintenance is eligible to be awarded spousal maintenance in an Arizona legal separation case. The court, however, is required to enter child support orders in all cases.
Differences Between Arizona Legal Separation and Divorce Laws
The law in Arizona provides that you must be a resident of the State of Arizona for at least ninety days prior to filing a Petition for a Dissolution of Marriage. However, the Arizona legal separations laws in Title 25 does not have a ninety-day residency requirement for you to file a legal separation in Arizona. As a result, you can file for a legal separation in Arizona the same day you become a resident of Arizona.
Another difference is that Arizona legal separation laws do not restore you to the status of a single person because your marriage is not dissolved. You are, therefore, still married and cannot remarry until you later convert your legal separation into a divorce in Arizona.
What Happens in a Legal Separation in Arizona?
The main difference between a legal separation in Arizona and a divorce is that the spouses remain married.
Neither spouse may remarry in the future without changing the legal separation into a divorce.
You may choose legal separation instead of a divorce if your religious beliefs do not allow divorce.
Another reason you may choose a legal separation is to maintain health insurance through your spouse’s group health insurance plan.
So, there are many benefits to a legal separation.
An Arizona judge in family court is authorized to issue a decree of legal separation, according to Arizona Revised Statute 25-313.
In a divorce, you or your spouse must have lived in Arizona for at least 90 days.
Arizona legal separation laws require you to be a resident of Arizona, but the 90-day requirement does not exist.
The process of obtaining a legal separation in Arizona is almost identical to getting a divorce.
Similar to a divorce case, a family court in a legal separation case is required to divide the parties’ community property.
The court also enters orders providing for child custody of the married couples’ minor children, orders child support and, if appropriate, orders one spouse to pay spousal support (“i.e., “spousal maintenance”) to the other spouse.
So, a legal separation takes as much time to complete as an actual divorce case.
Starting an Arizona Legal Separation Case
You file those initial documents in the Superior Court in the particular county where you or your spouse lives.
Only one spouse is required to live in Arizona to file the Petition for Legal Separation.
For example, a wife living in Arizona may pursue a legal separation in Arizona even though her spouse lives in California.
You are then required to serve your spouse with the Petition for Legal Separation and related documents.
The following are the ways you may legally deliver the legal separation on your husband or wife:
- Hire a private process server to serve the documents;
- Use a law enforcement officer to provide the materials to your spouse;
- Obtain your spouse’s signed and a notarized affidavit listing the materials he or she received and a statement that he or she waives formal service of process;
If you wish to stop a legal separation, you can do so by dismissing your petition before your spouse files an answer.
If your spouse has already submitted a response to your legal separation documents, you can only stop it if both spouses agree to dismiss the case.
Legal Separation Terminates Financial Ties
You are still married after a Decree of Legal Separation is issued.
However, your property rights change when a Decree of Legal Separation is issued.
The assets and debts you acquire after the legal separation is issued are now your sole and separate property.
These assets and liabilities are your property and obligations because the marital community terminated when the Decree of Legal Separation was issued.
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 must convert the case into a divorce if your spouse wants a divorce.
The conversion of legal separation into a divorce can be done either during the initial legal separation case or after a Decree of Legal Separation is issued by the Court.
Converting Your Legal Separation into a Divorce
There is no limit to how long you can remain legally separated in Arizona.
However, you may turn a legal separation into a divorce before or after a final Decree of Legal Separation is issued by the Court.
The process for converting a legal separation into a divorce varies depending upon when that conversion from occurs.
We have outlined several possible scenarios below to address these different scenarios.
Scenario Number One: You are the person who filed the initial Petition for Legal Separation, and the other spouse has not submitted an Answer to that Petition.
In this case, you may file 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 submit a stipulation signed by both parties agreeing to allow the Petitioner to file an Amended Petition to change the case to a divorce.
Alternatively, you must file a motion with the court requesting permission to Amend the initial Petition to a Petition for Dissolution of Marriage.
The Court routinely grants such actions.
Scenario Number Three: If you are served with the Initial Petition for Legal Separation and wish to convert the case to divorce and have not yet filed an Answer.
You can submit an Answer to the Petition for Legal Separation and assert a 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 need to obtain a stipulation with the other spouse to convert the case to a divorce.
Alternatively, you can 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 can file a new Petition for Dissolution of Marriage using the same case number of the underlying legal separation case.
The other spouse is required to file an Answer, and the parties may submit a Consent Decree of Dissolution of Marriage.
That Divorce Decree would incorporate all of the orders previously ordered by the Court in the prior Decree of Legal Separation.
It is important to understand how to reference the prior orders in the previous Decree of Legal Separation to ensure you do not change the effective date of those prior orders.
There are several factors to consider in the language you use when converting a legal separation into a divorce.
You should contact a competent Arizona legal separation attorney about a legal separation versus divorce in Arizona.
If you have questions about legal separation in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona legal separation and family law attorneys have over 100 years of combined experience successfully representing clients in legal separation and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your legal separation or family law case around today.
More Articles on Legal Separation in Arizona
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