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Legal Separation or Divorce
For a variety of reasons, spouses considering divorce are sometimes hesitant. They may desire to avoid divorce for religious reasons or may be concerned about how divorce will impact their ability to maintain health insurance. Others primarily seek to separate financially to limit one spouse’s financial liability. Others may wish to begin living separately before making decisions about their future. Others No matter what reasoning is behind the hesitation, in Arizona, Legal Separation is available as an alternative to divorce.
When considering your options, it’s important to understand how legal separation and divorce are alike and how they differ. The following information will give you an overview of how these processes compare and contrast. The Aurit Center for Divorce Mediation offers this information so that you can make informed decisions about how best to successfully complete your process.
The legal processes for legal separation and divorce in Arizona are nearly identical. They each require the filing of a Petition, Service, and a Consent Decree. They take about the same amount of time to complete and have the same residency requirements.
In mediation, whether for legal separation or divorce, the same issues are discussed and agreed upon. Your mediator will guide you in reaching agreements regarding child support, spousal support, division of assets and debts, and in creating a unique parenting plan. In contrast, litigation (fighting in court with attorneys) typically makes the process more lengthy and costly.
Both legal separation and divorce result in an end to the spouses’ community property relationship. This means that Arizona law will no longer assume that any assets, debts, or income acquired by either spouse will be equally shared. Thus, there is both financial and physical separation. In almost every way, legal separation resembles a divorce, but the spouses still remain legally married.
At any point in the legal separation process, spouses may choose to convert to a divorce. This is easily accomplished in mediation via a Stipulated Motion to Convert Legal Separation to Divorce. A signature by each spouse and a stamp by the court is all it takes to finalize the divorce. All of the terms and agreements of the legal separation can remain the same.
While in most cases fairly simple, the conversion process if completed through the courts requires additional steps. First, the Petition must be refiled, and then a new affidavit of service must be submitted. The terms of the parties do not change, except in very rare cases.
What is the Difference Between Legal Separation and Divorce?
When a legal separation is final in Arizona—despite still being legally married—spouses have separated both physically and financially, and their community property relationship has ended. While the issues remain the same (e.g., child custody, division of assets, spousal maintenance), in a divorce, spouses are no longer legally married.
Whether you have a covenant or non-covenant (far more common) marriage, both spouses must agree to seek a legal separation. Dissimilarly, since Arizona is a “no fault” divorce state, it only takes one spouse to want a divorce to obtain one.
Advantage to Legal Separation
With a legal separation, though the spouses’ financial relationship no longer exists, the legal marriage is still preserved. This can be quite advantageous to those who have faith-based considerations, health insurance concerns, or the desire to leave the door open for eventual reconciliation.
“I’m so glad we went the mediation route.”
“Well-organized, supportive, compassionate and effective: I’m so glad we went the mediation route. I was completely satisfied with the results.
Their level of skill and compassion surpassed what I expected during the difficult process of divorce.”
The Timeline for Legal Separation in Arizona
In Arizona, both legal separation and divorce can only be finalized after 60 days from when either the Petitioner has served the Respondent or the Respondent has signed the Acceptance of Service. Please note, no one is “served” during the mediation process. Instead, one spouse signs a document called an Acceptance of Service, that essentially waives formal service. Working simultaneously with the spouses’ legal process, the mediation process can take as little as 2-4 months, while the litigation process can take a year or more.
Key Differences for Careful Consideration:
Legal separation preserves the legal marriage and neither spouse can remarry. Alternatively, at the conclusion of a divorce, the single status of each spouse is restored, giving them the ability to marry again. Though the thought of remarriage may seem ludicrous in the middle of such a trying time, in the coming months you will undergo a healing process and eventually you may be open to the idea.
Unfortunately, despite still being legally married, for tax purposes, the federal government identifies legally separated spouses as divorced, so they are not able to file their income taxes jointly. Instead, they are likely to file as Married Filing Separately.
Legal Separation can be viewed as a stepping stone to divorce, especially when one or both spouses are not yet emotionally prepared for the finality of divorce. Although you may believe divorce will be necessary in your future, if you or your spouse are struggling emotionally with the idea of ending your marriage, you may consider a legal separation in the interim.
Some spouses elect for legal separation for religious reasons. For those that find the finality of divorce difficult, some religions are more tolerant of legal separation, as it leaves the door open for reconciliation. Legal separation allows you to remain legally married and to choose the level at which to separate your lives financially, socially, and physically.
When either spouse is unemployed and only has comprehensive health insurance through their spouse’s employer, and/or they cannot afford private health insurance, legal separation may be a workable alternative to divorce.
Many health insurance plans allow legally separated spouses to continue to receive the same benefits, due to the fact that they remain legally married. This is quickly changing as companies attempt to reduce their health insurance costs. It is crucial that individuals check with their employers and insurance providers to understand whether insurance coverage would continue for the employee’s spouse in the event of a legal separation.
Following divorce, most spouses need to find separate health insurance plans. Utilizing the Consolidated Omnibus Budget Reconciliation Act (COBRA) for a while may be an option worth exploring. Though it is temporary and can be fairly expensive, it can be helpful during transition.
The Dissolution of the Community
Division of assets and debts takes place in both legal separation and divorce. The future income of each spouse stays solely with each of them respectively and the community property relationship ends whether they divorce or legally separate. Spouses wishing to stay together but distanced from each other’s financial liability (e.g., business loans or credit card debt) may find legal separation to be the best option.
The Effect on Children
While a legal separation or divorce is certainly hard on spouses, it can also be difficult for their children. Mediating your legal separation or divorce can help shield children from the negative effects of conflict between their parents and spare them the traumatizing experience of litigation.
If you and your spouse reasonably believe that you may reconcile someday, you can explain to your children that your legal separation means that Mom and Dad will now be living in different locations. You should emphasize to your children that Mom and Dad’s decision to become separated was mutual and was in no way their fault. You can also let them know that Mom and Dad still respect and support each other as parents, and above all, that you both love them unconditionally. If you someday decide to seek a divorce, this precursor will have given your children time to adjust to Mom and Dad living apart and will give you time to prepare them emotionally for further transition.
If you and your spouse are legally separating but do not anticipate reconciling, you should avoid unintentionally giving your children hope for your reunion.
Whether you decide to divorce or legally separate, your children are at the heart of your mediation process. A trained family mediator, adept at family law and related financial matters, will guide you through a fair, confidential, and cost-effective process. Most importantly, they can structure the process to prioritize, highlight and account for your children’s best interests.
Deciding to divorce or separate can be stressful and confusing. Typically, one spouse is more ready to move forward than the other. Given that Arizona is a “no fault” divorce state, it only takes one spouse to wish to proceed for the divorce to happen.
Mediation doesn’t have to start with a definitive goal of divorce or legal separation in mind. Spouses can feel free to change their minds about whether to seek a legal separation or divorce at any time in the process. Spouses can also begin mediation at any point in their legal process. What started as a legal separation can easily be changed to a divorce, and vice versa, as long as the spouses agree and the decree has yet to be finalized. The choice of legal separation or divorce does not change the mediation process at all.
Deciding if and when to start your divorce or legal separation process is entirely up to you and your spouse. Legal advice can be helpful and is encouraged, but only you can know what is best for your family. While a legal separation can be a tricky situation—still married, but separated both financially and physically—working with a professional mediator, rather than two opposing divorce attorneys, gives you the best chance for a successful low-conflict process.