Frequently Asked Questions Regarding Divorce & Legal Separation

Cindy Best

What is the difference between a legal separation and a divorce in Arizona?

An Arizona legal separation and an Arizona divorce are almost identical. In fact, there are more similarities than differences. In both cases, the court will issue final orders dividing the spouses? debts and assets, enter custody and parenting time orders regarding the parties? children and enter child support and spousal maintenance orders. Additionally, the community property rights and obligations previously existing between the spouses are terminated. The only significant difference between a divorce and legal separation in Arizona is that the parties are not legally restored to the status of single persons and may not, therefore, remarry.

Why would someone choose a legal separation over a divorce in Arizona?

Although there are many personal reasons a person may seek a legal separation, as opposed to a divorce, some of those reasons may be: religion, health insurance and debts, such as gambling. Also, circumstances may exist in which a spouse has a significant physical ailment that would not be covered by his or her health insurance plan or by some other plan if the parties were divorced. In some circumstances, a legal separation may provide a more suitable alternative to a divorce.

How do I obtain a legal separation in Arizona?

A legal separation in Arizona is obtained in the same manner as a divorce. In both cases, an initial petition is filed with the Superior Court. The petition is served on the other spouse, and the parties either submit a settlement agreement resolving all of the issues in the case, or the issues are presented to the court at a trial, after which, the judge issues final orders resolving the issues in the case. The procedural steps in an Arizona legal separation case are identical to the steps necessary to complete a divorce.

May I stop an Arizona legal separation proceeding?

You may only stop a legal separation proceeding if the other party has not been served with the petition or the other person has been served with that petition, but he or she agrees for the case to be dismissed. In either case, the dismissal of the legal separation must occur before the court enters a final Decree of Legal Separation.

May I later convert an Arizona legal separation to a divorce?

You may always convert an Arizona legal separation to a divorce at any time. In fact, you may convert the legal separation to a divorce before or after the final Decree of Legal Separation is issued by the court.

What does the court do if one spouse seeks a legal separation and the other spouse seeks a divorce?

The court has no discretion when one spouse seeks a legal separation and the other spouse asks the court to enter a divorce. The court must allow the divorce to proceed if either spouse requests a divorce.

How do I start a legal separation?

To start a legal separation, one party needs to file a petition for legal separation. There are two different petitions; one for families with children and one for families without children. The petition must be served on the other party, just as in a dissolution.

Who gets to live in the home and how are bills paid during the period the legal separation is being prosecuted?

These issues can be addressed by agreement between the parties, but if you do not have agreements, the court can grant temporary orders to address specifically those and other issues. These temporary orders will govern until the case is finished. This is the same process in a dissolution.

What happens if I get served with separation papers?

Many people simply ignore the papers they receive, or simply take the word of the other spouse that they do not have to do anything. Ignoring the paperwork and failing to file a response can lead to disaster. Despite how much you may want to cooperate with your spouse, or be unable to react due to the emotional stress, you cannot ignore the paperwork. A divorce or separation is like any other civil lawsuit. If you do not respond, you will be in default and can lose many rights that could have protected you.

Does it matter who files first?

In Maricopa County, the party who files first will have his or her case set in the courthouse nearest their address. There are four courthouses in the Valley and you may prefer being in one location rather than another.

Do all separations have to go to trial?

No, in fact the majority of separations in Arizona eventually settle without the need to go to a final trial. However, if you are unhappy with the settlement proposals being made by your spouse or they are refusing to accept your proposals, then you may need to mediate, obtain counsel, or go to trial.

How are property and debts divided in a legal separation?

Arizona is a community property state. This means that any property that was obtained, income acquired or debt incurred during the marriage will most likely be divided evenly. Property that was gifted to or inherited by one spouse or was owned by a spouse prior to the marriage is considered separate property and may be protected from the claims of the other spouse. This is the same law that applies to property in a dissolution. (Please see Chapter 6.)

Are you ready for a consultation? GET CONSULTATION