Scottsdale Legal Separation Attorneys

Name: Best Law Firm
Address: 9383 E Bahia Dr, Ste 100, Scottsdale, AZ, 85260
Telephone: (480) 219-2433

What You Need to Know About Legal Separation in Phoenix & Scottsdale, AZ

(480) 219-2433

What is Legal Separation?

A legal separation is a Court order that allows spouses to remain married but not be legally bound to each other financially; the order will divide the parties’ assets and debts and allow each party to keep whatever asset and debts they acquire after the legal separation. It is basically the process of a divorce through the division of assets and debts but staying married at the end of it.

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Legal Separation VS Divorce

Difference between legal and separation and divorce.

In a practical sense, a legal separation is like a divorce except the parties are still married to teach other when it is finished. During a legal separation proceeding, the Court must terminate the marital community (explained below), divide any assets or debts the parties acquired during marriage, determine if one spouse owes the other spousal maintenance, and, if applicable, determine child custody and child support. These are the same issues as in a divorce.

What is the marital community?

Arizona is a community property state. That means anything either party acquires during the marriage belongs equally to both spouses with the exceptions for items acquired by gift or inheritance. And “by anything,” we mean “anything”—houses, bank accounts, vehicles, credit card debt, student loan debt, businesses, retirement accounts, investment accounts, furniture, etc. The “marital community” refers collectively to anything acquired by either spouse during the marriage. A legal separation terminates the marital community, and any debt or asset acquired after the legal separation shall belong to the spouse who acquired it.

Is a legal separation cheaper than a divorce?

Not really. The same issues that need to be decided in a divorce need to be decided in a legal separation. The process of litigation for divorce and legal separation is pretty much identical.

Why People Choose Legal Separation

01.

To allow one spouse to remain on the other spouse’s benefits.

Especially among older couples, maintaining the benefits one received during marriage can be very important. This is especially true where one spouse depends on the other spouse to provide health insurance. After a divorce, both parties are responsible for their own health insurance—this may not be feasible for one of the spouses. For that spouse, a legal separation allows them to remain on health insurance.

02.

For religious or moral reasons.

Many religions frown upon divorce. And some non-religious individuals were also raised to believe that a divorce is inappropriate. Some believe in the commitment they made at the time of marriage. The decision to divorce or stay married belongs solely to each spouse in the marriage. We do not advise people one way or another on that decision, and we respect everyone’s personal choices. We understand and respect people who want to stay married for religious or moral reasons.

03.

The financial decisions of the other spouse.

We commonly help individuals who do not want to be divorced but are concerned about being irreparably harmed by the other spouse’s poor financial decisions. These include, for example, a spouse with gambling addictions who is running up credit card debt or a spouse who is choosing to drive while intoxicated or a spouse who is racking up extensive debt on a business. In such situations, it is easy to see why someone would want to cut the financial tie from the person they love. These individuals are often relieved to find out that divorce is not the only option and that can stay married to the person they love without having the financial liability for their spouse’s poor choices.

04.

For emotional reasons.

We frequently have individuals who want to start by filing for legal separation as a way of lessening the emotional blow that often accompanies filing for divorce. We certainly understand that filing divorce paperwork can be a traumatic and difficult; whereas a legal separation does not carry the same emotional punch.

What To Know About Legal Separation

01.

Both parties must agree to a legal separation.

Both parties must choose to remain married. Either party may move to change the legal separation proceedings to divorce proceedings.

02.

The most common response to a Petition for Legal Separation is for the other party to convert it a divorce.

While legal separation is the alternative to a divorce, most Petitions for Legal Separation result in a divorce. That’s because the response almost always asks for the legal separation proceedings to be converted to divorce proceedings. In making the decision of whether to file for legal separation, you should be aware that this is the common outcome.

03.

The jurisdictional requirements for a legal separation and divorce are the same.

Jurisdiction can sometimes be tricky as jurisdiction varies depending on the issue. Here’s a quick overview of jurisdiction Arizona needs to do certain parts of a legal separation:

To enter a Decree of Legal Separation. One party must have lived in Arizona for at least ninety consecutive days (temporary absences allowed) prior to the filing of the Petition for Legal Separation.
To enter an order regarding child custody. If the legal separation involves a minor child, the child must have lived in Arizona for six consecutive months (temporary absences allowed) prior to the filing of the Petition for Legal Separation. If your child has not lived in Arizona for six consecutive months or another state previously determined custody, we recommend you speak with an attorney to determine whether you can file in Arizona.
To divide property. Arizona must have personal jurisdiction over both spouses. This means the parties either live here or have significant contacts here. In other words, it means both parties have a connection to the state. For example, in one case, the husband had never been to Arizona, but because he co-owned an Arizona-based business with his wife and filed taxes here, Arizona was found to have personal jurisdiction. While personal jurisdiction is a complicated legal matter, it is a rare case where Arizona does not have personal jurisdiction. If you have questions regarding personal jurisdiction, we recommend you speak with an attorney.

04.

Like a divorce, the marital community terminates on the day the Petition is served so long as the Petition results in a divorce, legal separation, or annulment.

The responding spouse has the right to choose to convert the proceedings from a legal separation to a divorce. If they choose to convert it to divorce proceedings, the community will still terminate on the date the Petition for Legal Separation was served under Arizona law. See A.R.S. § 25-213(B).

05.

The division of property in a legal separation is final, as it would be in a divorce.

After a legal separation is completed, a party files for divorce, the Court cannot enter new division of property orders. Under Arizona law, the exception to this is the same as it is for divorce—if there are grounds to reopen the divorce or legal separation (such as someone concealing assets), it can be reopened.

06.

After a legal separation is entered by the Court, either party may petition for divorce.

The party moving for divorce must file under the same case number as the legal separation. The 60-day waiting period and the jurisdictional laws for divorce still apply when someone files for a divorce.

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What is legal separation?

A legal separation is the Court process by which spouses can choose to remain married but may choose to end their community property relationship, divide their assets and debts, and determine spousal maintenance, child custody, and child support.

If my spouse moves out, are we legally separated?

No. Legal separation refers to going to Court to actually be declared legally separated. The spouses merely moving into different homes is not a legal separation.

My spouse and I separated five years ago and have lived apart ever since. We do not do a legal separation or a divorce. Am I financially responsible for my spouse’s debts?

Legally, yes. For example, if your spouse ran up a large credit card debt and cannot afford to pay the bill, the credit card company could (and most likely will) come after you.

Can we be legally separated without filing in the Court?

No. Legal separation requires a Petition for Legal Separation be filed with the Court, and for the Court to issue a Decree of Legal Separation.

Is a legal separation cheaper than a divorce?

Not really. The same issues that need to be decided in a divorce need to be decided in a legal separation. The process of litigation for divorce and legal separation is pretty much identical.

Once we are legally separated, can we still file taxes as married?

No. Once you are legally separated, you cannot file taxes as married. This applies to both the status for married filing jointly and married filing separately.

If I am legally separated but cannot file as married, what tax status can I claim?

Likely, you will be filing as single. You may qualify to file as head of household if you have a qualifying dependent living with you six months out of the year and you are primarily responsible for your living expenses. If you are considering file as a head of household, we recommend speaking with a tax accountant or tax attorney to see if you qualify.

Can I terminate the marital community without filing for divorce or legal separation?

Yes, this can be taken care of in a prenuptial agreement or post-nuptial agreement.

On what date does the marital community terminate?

As with a divorce, the marital community terminates on the date the Petitioner (the spouse who filed) serves the Petition for Legal Separation on the other spouse so long as the petition results in a divorce, legal separation, or annulment.