People sometimes choose a legal separation rather than divorce, perhaps for religious or financial reasons. In Arizona, legal separation addresses all the same areas that a divorce does, with the difference being that the couple’s marriage is not legally dissolved– and as such neither party can get remarried.
The other difference between legal separation and divorce is that a legal separation may allow one spouse to continue to maintain health insurance coverage on the other spouse, whereas under a divorce health insurance coverage of a spouse must terminate.
If you or your spouse file for legal separation and either of you determines you instead want a divorce, Affordable Family Law can assist you in filing a petition to convert your legal separation to a divorce. It is only necessary for one party to desire to convert the case to a divorce.
That brings us to our final difference between divorce and legal separation. Legal separation must be done by consent of both parties. Whereas with divorce, only one spouse needs to assert that they believe the marriage is irretrievably broken.
In order to obtain a legal separation in Arizona, there must be a legal marriage to separate and at least one spouse must have been residing in Arizona for the past 90 days. If the couple has minor children, a major part of their case will be child custody. In order for the Superior Court to assert jurisdiction and address child custody, the children must have been residing in Arizona for the previous six months.
Reasons for Legal Separation
When it comes to separation, Arizona is a “no-fault” state. That means that separating couples do not have to provide the Court with a specific “reason” for their separation. As such, the Court does not take reasons for the legal separation, such as infidelity, into consideration when issuing a separation.
An Arizona separation addresses the same major areas as a divorce: division of any property, assets and debts obtained during the marriage, and an affirmation of property, assets and debts acquired prior to marriage to the party that owned them. If either party qualifies, spousal maintenance (alimony) will be determined. Finally, if the separating couple has minor children there will be orders addressing custody, legal decision-making, parenting time and child support.
To initiate a separation in Arizona one spouse must file a “Petition for Legal Separation” and the accompanying initial documents. In doing so, the filing spouse becomes the Petitioner in the separation case.
After the Petition for Legal Separation is filed, a copy of all documents filed with the Court must be served on the other spouse, known as the Respondent. The Respondent can agree to waive formal process service and accept service of the Petition and accompanying documents.
Either way, the Respondent has 20 days (if served in Arizona) or 30 days (if served outside of Arizona) to file a Response to the Petition. The Response will contain the Respondent’s positions on each claim made by the Petitioner in their Petition. After the Response is filed, the Court will schedule an initial hearing to determine any areas of agreement, disagreement, schedule services such as mediation, and set a Trial date.
If a Response is filed but both parties are able to reach an agreement regarding all issues without proceeding to Trial, they can submit a Consent Decree of Legal Separation that sets forth all of their agreements for the Judge to sign and make their separation final.
If the Respondent fails to file a Response within the time limit, the Petitioner can apply for default. After an Application and Affidavit for Default is filed with the Court, the Court gives the Respondent an additional ten (10) business days to file a Response or face the risk of the legal separation being granted on all the terms the Petitioner requested in their Petition. If no Response is filed, the Petitioner can proceed via default at the end of the Court-mandated “cooling off” period of 60 days after the Respondent is served with the legal separation papers.
Do I Need an Attorney?
First of all, no one is required to hire an attorney in order to get a divorce in Arizona. However, one’s need for an attorney depends upon each person’s unique circumstances. That being said, the majority of legal separation cases filed in the Arizona Family Court are done so without attorney representation.
If spouses aren’t disputing custody and support of their children, or division of property for example, a lawyer could be a costly and unnecessary venture. They might just need someone to guide them through the legal process and completion of the paperwork.
That is exactly what we do at Affordable Family Law. We gather all Court-required information up front. Based on that information, we then explain all available options and allow our clients to select the option that works best for them. From there, we prepare the petition and all the accompanying paperwork according to the Court’s rules. Our clients review and approve of everything before anything is submitted to the Court. Finally, we educate our clients on their options for finalizing the legal separation in the most timely and cost-effective manner possible.
Make sure you explore all your Arizona legal separation options before hiring a costly lawyer. If you and your spouse want to separate amicably, contact Affordable Family Law today to learn how we can help you achieve your goals for a fraction of the cost of a lawyer.