Filing for legal separation in Arizona

In a legal separation in Arizona, the spouses remain legally married to each other and cannot marry anyone else. A legal separation isn’t the same as divorce. However, filing a legal separation, negotiating and creating parenting plans, dividing assets, and determining spousal support are similar to how you would proceed if you were divorcing instead.

Negotiating the terms of a legal separation can have a lasting impact on your and your children’s lives and future. If you and your spouse opt for divorce after the legal separation, the plan that you have in place could become permanent.

This is why having a skilled Arizona family law attorney advise you during the process is so important. Your attorney can advocate for you, protect your interests, and help you achieve the best possible outcome from a turbulent situation.

What Is Legal Separation in Arizona?

Spouses who legally separate in Arizona remain married to each other but do not live together as a married couple. Legal separation may be an option for couples who are having marital difficulties but aren’t ready to separate permanently through divorce. When legally separated from your spouse, you divide community property and communal debt, establish child support payments if you have minor children, create a parenting plan, and set up a spousal support (alimony) arrangement.

However, unlike divorce, you may only file a legal separation petition if both spouses consent. If you want to end the marriage but your spouse does not, your only option is divorce.

Is Legal Separation the Same as a Divorce or Annulment?

While a legal separation shares many of the same characteristics as divorce, it isn’t the same. You and your spouse are still married and may opt for this arrangement to leave the door open for reconciliation.

Legal separation is not the same as an annulment either. When a marriage is annulled, it is legally nullified as though it never took place.

Why Would Someone Choose Legal Separation Instead of Divorce?

Some of the common reasons why couples consider filing for legal separation in Arizona include:

• They want to try living separately before committing to divorce.
• They need space or time away from one another to work through marital problems.
• They want to retain any death benefits. If a couple is legally separated, any spousal benefits from either estate would still go to the spouse, per Arizona law.
• Their religious or personal beliefs do not allow divorce.
• They wish to keep health insurance.

How Do I File for Legal Separation in Arizona?

Legal separation is governed by the same statutes that govern divorce in Arizona. Unlike filing a petition for divorce, a legal separation must be consensual.

You are not legally required to have an attorney file a legal separation on your behalf. However, it’s often in your best interests to hire a lawyer instead of representing yourself.

After agreeing to legally separate from your spouse, the next step is to file a petition for legal separation. One spouse must live in Arizona to file in the state. The petition must indicate that the marriage is irretrievably broken or you want to live separately and apart.

The next step in legal separation is creating a separation agreement. This document will outline the division of community property and debts, whether and how spousal support will be paid, and how child custody and support will be handled. You and your spouse will submit your separation agreement to the court for the judge’s approval.

What Is Arizona’s Legal Separation Statute?

Title 25 of the Arizona Revised Statutes covers all matters relating to legal separation in Arizona. Relevant statutes include:

• Arizona Revised Statute Section 25-313 – This section outlines when a court may issue a decree for a legal separation.
• Arizona Revised Statute Section 25-403 – This covers child custody and parenting plans. A judge evaluates your plan and will approve it if they determine it to be in the child’s best interests.
• Arizona Revised Statute Section 25-318 – This statute determines how property is divided in a legal separation.
• Arizona Revised Statute Section 25-319 – This provides for spousal support and must be agreed on by both spouses.
• Arizona Revised Statute Sections 25-320 – This statute covers child support. A judge will often order child support in legal separation cases. However, they may approve a plan that you and your spouse achieved through mediation.

How Is Community Property Division Handled in a Legal Separation?

Dividing community property in a legal separation is much like dividing it in a divorce. All property accumulated during the marriage is divided equitably between both spouses.

Once the community property and debts are divided, each spouse is legally responsible for only those assets and debts they are allocated. Legally separated spouses in Arizona do not have shared property rights or debt liability for any property the other spouse acquires or debt they accumulate after the judge approves the legal separation.

Many couples may opt for mediation to divide property and debt. But you may be able to come to an amicable agreement on your own. The advice of a lawyer can benefit you during the negotiation process to ensure that you are making decisions that are in your best interest and not reacting emotionally.

Is Legal Separation Possible in a Covenant Marriage?

Legal separation is possible for couples in a covenant marriage, although only under specific circumstances, per Arizona law. These situations include:

• Adultery
• Felony incarceration or death sentence
• Abandonment of the marital home for longer than one year
• One spouse or their child has been sexually, physically, or emotionally abused by the other
• Both parties have been living apart continuously for two or more consecutive years
• One spouse abuses alcohol or drugs
• The couple can no longer live together because of one spouse’s regular alcohol abuse or ill-treatment of the other spouse

Contact an Arizona Family Law Lawyer

Legal separation is complicated, stressful, and emotional. The support and advice of an experienced Arizona family law attorney can help you through the process, protect your interests, fight for your rights, and prepare you for the future. Our compassionate, tenacious legal team is ready to help. Contact Mushkatel, Robbins & Becker, P.L.L.C. today for a confidential consultation with a skilled Arizona legal separation lawyer.

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About the Author

Zachary Mushkatel

Zachary Mushkatel discovered his affinity for the law by chance. As a political science major at the University of Arizona, he first aspired to become a professor. But an unexpected invitation to participate on a mock trial team at the university encouraged him to turn his competitive spirit and drive…