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What Are the “Rules” of Legal Separation?

Posted On December 31, 2023 In Divorce

Ending a marriage isn’t an easy decision and a finalized divorce has huge legal and emotional repercussions for spouses and their families. In Arizona, spouses have the option of requesting a legal separation through court orders rather than a divorce—or until they decide to divorce or reconcile. There are many reasons why spouses in Arizona may choose a legal separation to put protections in place while they live separately without formally dissolving the marriage.

If you or your spouse are considering a legal separation in Arizona, it helps to first understand the “rules” of legally separating.

Why Choose a Legal Separation Rather Than a Divorce?

Not all states offer spouses the option of legal separation rather than divorce or until a divorce, but souses in Arizona have this legal option available to them if they wish to live apart but remain legally married. Spouses may choose to legally separate for one or more of the following reasons:

  • They want a “trial divorce” to help decide whether to divorce or reconcile
  • They wish to live apart and want guidelines in place for child custody, child support, and spousal maintenance while they decide whether or not divorce is the right path
  • They want to live separate lives while remaining legally married to share insurance coverage, tax benefits, and other marital protections
  • They cannot divorce for religious reasons but wish to live apart with legal protections in place

If one or both spouses have been Arizona residents for 90 days or more, they can petition the court for a legal separation.

Understanding the Rules of Legal Separation

A legal separation follows a legal path very similar to divorce. One spouse must file the petition and the other responds to the petition. To obtain the separation, they must have grounds to separate. Like divorce, separating spouses need only claim “irreconcilable differences,” and that at least one spouse wishes to live apart. Once filed, either spouse may petition for emergency orders for child custody and child support until the judge’s final orders are put into place with the legal separation. Then, the rules for legal separation are as follows:

  • Spouses may determine the terms for their separation in a settlement agreement or the court decides for them if they cannot resolve disputes
  • The separation agreement or court order is a legally binding contract determining child custody, visitation, child support, division of property, and spousal maintenance
  • The court orders for legal separation are identical to those of divorce and remain in place until the spouses decide to petition for divorce or both spouses ask the court to overturn the order because they’ve reconciled
  • When spouses choose to divorce, they may keep the same orders outlined in their separation agreement in place for child custody, child support, and spousal support for their final divorce decree, or they may dispute the terms in a contested divorce process
  • During a legal separation, spouses may date others but should recognize that this can potentially impact their divorce case should they choose to divorce. By exposing children to another adult in their life, the court may scrutinize the other adult when making child custody decisions
  • Legally separated spouses may not legally remarry unless and until they dissolve the marriage through an Arizona divorce

Because a legal separation involves court processes and legally alters the state of the marriage, spouses should take the process as seriously as a divorce. This means obtaining legal counsel from a Chandler divorce attorney at Wilson-Goodman Law Group, PLLC is crucial to protect their rights through every stage of the process.