Legal Separations: FAQ

Cindy Best

Last week, we wrote about the similarities and differences between a legal separation and a divorce. We discussed how there are both practical and personal reasons for choosing a separation, including the fact that important healthcare plans can be retained through a legal separation. So, to follow-up on that article, we want to provide a quick FAQ page for those considering a legal separation over divorce. Having answers to these important questions will enable you to make the right legal decision!


Can spouses live together with a legal separation?

While living together when legally separated may be a troublesome situation, this option is available to you. In fact, it is a more common arrangement than you might think. Understand that many couples do not want to pursue a divorce, because there is still real hope of reconciliation. And because a legal separation preserves the marriage, any property obtained during the marriage (including the marital residence), is still considered marital property. This means you own the home together, and you will both be responsible for it. But overall, this issue can be addressed by agreement between the parties.


Do legal separations need to be in writing?

While some may perceive a legal separation to be less formal (and therefore does not need to be in writing), this is simply not the case. In both legal separations and divorces, the parties must make the necessary, written agreements, in a court of law, to make the decision binding. A legal separation is like any other civil lawsuit!


Is the procedure any different for a legal separation?

Nope. Simply put, the procedural steps in an Arizona legal separation are identical to the steps necessary to complete a divorce. In either a legal separation or a divorce, an initial petition is filed in the Superior Court. The petition would be served on the opposing party, and the parties either submit a settlement, or take the matter to trial.


Can you convert a separation into a divorce?

Yes. One may always convert an Arizona legal separation into a divorce, at any time. One may even convert the legal separation before or after the final Decree of Legal Separation is issued by the court! However, always be aware of the general rule that decisions in a legal separation are final in a subsequent divorce. The main exception to this rule only involves decisions and agreements concerning children. For those types of agreements and decisions, you are free to renegotiate those terms in a later divorce.


What if one spouse is seeking a divorce, and the other is seeking a legal separation?

If you find yourself in the position of disagreeing with your spouse on whether to pursue a legal separation or a divorce, know that the court will allow the divorce to proceed over the legal separation. All it takes is for one of the spouses to request a divorce. And most importantly, know the court has no discretion when both a legal separation and a divorce are requested. The divorce request will proceed over the legal separation request, period.


Any other questions?

Lucky for you, we have an entire chapter in our book dedicated to legal separations. Check out “The Divorce Coach: Your Guide to Arizona Divorce” for a comprehensive breakdown of all the legal channels associated with Arizona divorces. Available on Amazon.

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