Legal Separation in Arizona
What Happens in a Legal Separation in Arizona?
The main difference between a legal separation in Arizona and a divorce in Arizona is that the spouses remain married. Neither spouse can 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.
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. In a legal separation, you must still live in Arizona but the 90-day requirement does not exist.
The process of obtaining a legal separation in Arizona are 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.
Starting an Arizona Legal Separation Case
A legal separation is obtained when a person files 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 where you or your spouse lives. Only one spouse is required to live in Arizona at the time the Petition for Legal Separation is filed. For example, a wife living in Arizona may file for a legal separation in Arizona even though her spouse lives in California.
You are then required to either serve the other spouse with the legal separation documents by a private process server, a law enforcement officer or obtain the other spouse’s signed and a notarized affidavit listing the documents he or she received and a statement that he or she waives formal service of process.
Legal Separation Terminates Financial Ties
Although you are still married after a Decree of Legal Separation has been issued, the spouses no longer have the same property rights, or responsibilities they had before the Decree of Legal Separation was issued.
All of the assets and debts acquired by either spouse after the legal separation will be that spouse’s sole and separate property and obligations because the marital community was terminated 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 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 Your Legal Separation into a Divorce
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 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 sought. We have outlined several possible scenarios below to address these different scenarios fully.
Scenario Number One: If you are the person who filed the initial Petition for Legal Separation and the other spouse has not submitted an Answer to that Petition, 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 either submit a stipulation signed by both parties agreeing to allow the Petitioner to file an Amended Petition to change the case to a divorce or you must file a motion with court requesting permission 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 only 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 using the same case number that was assigned to the underlying legal separation case.
The other spouse is required to file an Answer and the parties could 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 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 that should be used when converting a legal separation into a divorce. You should contact a competent Arizona legal separation attorney before converting your Arizona legal separation into a divorce in Arizona.
Chris Hildebrand wrote this article about legal separation in Arizona to ensure everyone has access to information about legal separation laws in Arizona. Chris is a family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a legal separation should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through.
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