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Legal Separation Vs. Divorce in Arizona

Posted On December 13, 2021 In Divorce

Legal separation and divorce have much in common. The proceedings are similar and include the same final orders as divorce, including, but not limited to:

  • Property division;
  • Child custody and visitation;
  • Child support; and
  • Spousal support or alimony.

The one major difference between legal separation and divorce is that the spouses REMAIN SPOUSES! That is, the couple remains married to one another, and neither is free to remarry. To remarry, couples who are legally separated must procure a divorce (unless one spouse passes away).

Court Findings for a Legal Decree of Separation

A legal separation is only an option when the marriage is legal and valid. For a court to award a legal decree of separation, it must find the following:

  • That one of the parties at the time the action was commenced was domiciled in this state or was stationed in this state while a member of the armed services;
  • The conciliation provisions of § 25-381.09 and the provisions of article five of this chapter either do not apply or have been met;
  • The marriage is irretrievably broken, or one or both of the parties desire to live separate and apart or if the marriage is a covenant marriage, any of the grounds prescribed in § 25-904;
  • The other party does not object to a decree of legal separation. If the other party objects to a decree of legal separation, on one of the parties meeting the required domicile for dissolution of marriage, the court shall direct that the pleadings be amended to seek a dissolution of the marriage; and
  • To the extent it has jurisdiction to do so, the court has considered, approved, or made provisions for child custody, the support of any natural or adopted child common to the parties of the marriage entitled to support, the maintenance of either spouse, and the disposition of the property.

As with a no-fault divorce, a no-fault legal separation is ruled to be irretrievably broken by the court.

What if Spouses Choose Physically, not Legal Separation?

Should spouses choose to physically separate, each still owns an equal share of the marital assets and debts and is responsible for both. Spouses may remain physically separated and married to one another until death.

A legal separation includes final orders about property and debts. When one spouse fails to pay debts or abide by property orders in their decree, that spouse may petition the court for enforcement of the order.

Once the court enters a decree for legal separation, there is no more community (marital) property.

Why Choose Legal Separation?

There are several reasons spouses choose legal separation over divorce. These may include, but are not limited to:

  • Religious beliefs;
  • Health insurance;
  • Children; and
  • Uncertainty about divorce.

Legal Separation and Covenant Marriage

Spouses with a covenant marriage have additional statutory requirements to procure a legal separation. A grounds for legal separation is required, and the petitioning spouse must prove their case by a preponderance of the evidence.

What if One Spouse Wants a Divorce?

If one spouse wants a divorce and the other wants a legal separation, any case for legal separation must be converted to a divorce or dismissed.

Speak with an Experienced Arizona Family Law Attorney

To determine if legal separation or divorce is the best choice for you and your spouse, speak with an experienced Chandler divorce attorney at Wilson-Goodman Law Group, PLLC. One of our knowledgeable attorneys can discuss the pros and cons of both actions with you before you take your next step.

At Wilson-Goodman Law Group, PLLC, we believe in meeting your unique needs with practical solutions designed specifically for you. Contact our office today to learn more about our full-service law firm.