Separation or Divorce?

A common question spouses have is whether they should get a legal separation instead of a divorce. The answer depends on what you are trying to achieve. If you want some financial protection, or you want to continue your health insurance, a legal separation will accomplish both. If you want to get remarried,

you need to get divorced. A legal separation is almost identical to a divorce, except that in the end you are separated, not divorced. The procedures are identical in terms of filing, costs and the final agreements. Financial agreements in a legal separation will become the same financial agreements in a divorce. In other words, you cannot make a decision regarding finances in a legal separation and then change your mind about the same issues in a divorce. So, the financial agreements (or court decisions) cannot be changed in a subsequent divorce action.

Again, children are an exception to this general rule. You and your spouse can make certain decisions and agreements for a legal separation concerning children and then be free to renegotiate or litigate those decisions in a subsequent divorce. Be advised that there is some duplication if a legal separation turns into a divorce.

If the person who initially filed for a legal separation changes his or her mind and decides that he or she prefers a divorce, then that spouse may file an amended petition and request the dissolution of marriage. A new filing fee does not need to be paid. On the other hand, if one spouse files for a legal separation, the responsive party can convert the legal separation into a divorce by their responsive pleading (answer), without the consent of the party who filed first and without paying additional filing fees. They must still pay the answer fee, which is currently $269.00 in Maricopa County.

Do not be lulled into thinking you are getting legally separated when, in fact, your action may cause your partner to convert your separation filing into a divorce. If either party wants a divorce, there is nothing the other person can legally do to stop it.